Among legal scholars, it is undisputed that the Supreme Court has said almost
nothing about the Second Amendment. [FN1]
This article suggests that the Court has not been so silent as the conventional
wisdom suggests. While the meaning of the Supreme Court's leading Second
Amendment case, the 1939 United States v. Miller[FN2]
decision remains hotly disputed, the dispute about whether the Second Amendment
guarantees an individual right can be pretty well settled by
looking at the thirty-five other Supreme Court cases which quote, cite, or
discuss the Second Amendment. These cases suggest that the Justices of the
Supreme Court do now and usually have regarded the Second Amendment "right
of the people to keep and bear arms" as an individual right, rather than as
a right of state governments.

Chief Justice Melville Fuller's Supreme Court (1888-1910) had the most cases
involving the Second Amendment: eight. So far, the Rehnquist Court is in second
place, with six. But Supreme Court opinions dealing with the Second Amendment
come from almost every period in the Court's history, and almost all of them
assume or are consistent with the proposition that the Second Amendment in an
individual right.

Part I of this Article discusses the opinions from the Rehnquist Court. Part II
looks at the Burger Court, and Part III at the Warren, Vinson, and Hughes
Courts. Part IV groups together the cases from the Taft, Fuller, and Waite
Courts, while Part V consolidates the Chase, Taney, and Marshall Courts.

*100But first, let us quickly summarize what modern legal scholarship says about
the Second Amendment, and why the Court's main Second Amendment decision
--United States v. Miller--does not by itself settle the debate.

Dennis Henigan, lead attorney for Handgun Control, Inc., argues that the Supreme
Court has said so little about the Second Amendment because the fact that the
Second Amendment does not protect the right of ordinary Americans to own
a gun is "perhaps the most well-settled point in American law." [FN3]
Henigan argues that the Second Amendment was meant to restrict the Congressional
powers over the militia granted to Congress in Article I of the
Constitution--although Henigan does not specify what the restrictions are. [FN4]
One of Henigan's staff criticizes the large number of American history textbooks
which "contradict[ ] a nearly unanimous line of judicial decisions by
suggesting the meaning of the Second Amendment was judicially unsettled." [FN5]

Similarly, Carl Bogus argues that the only purpose of the Second Amendment was
to protect state's rights to use their militia to suppress slave
insurrections--although Bogus too is vague about exactly how the Second
Amendment allegedly restricted Congressional powers. [FN6]
This article refers to the *101State's Rights theory of the Second Amendment as the "Henigan/Bogus
theory," in honor of its two major scholarly proponents. [FN7]

In contrast to the State's Rights theory is what has become known as the
Standard Model. [FN8]
Under the Standard Model, which is the consensus of most modern legal
scholarship on the Second Amendment, the Amendment guarantees a right of
individual Americans to own and carry guns. [FN9]
This modern *103Standard Model is similar to the position embraced by every known legal *104scholar in the nineteenth century who wrote about the Second Amendment:
the Amendment guarantees an individual right, but is subject to various
reasonable restrictions. [FN10]

Both the Standard Model and the State's Right theory claim that Supreme Court
precedent, particularly the case of United States v. Miller, supports their
position.

Two other scholarly theories about the Second Amendment are interesting, but
their theories have little to do with Supreme Court precedent. Garry Wills
argues that the Second Amendment has "no real meaning," and was merely
a clever trick that James Madison played on the Anti-Federalists. [FN11]
David Williams argues that the Second Amendment once guaranteed an individual
right, but no longer does so because the American people are no longer virtuous
and united, and hence are no longer "the people" referred to in the
Second Amendment. [FN12]
Neither the Wills Nihilism theory nor the Williams Character Decline theory make
claims which depend on the Supreme Court for support, or which could be refuted
by Supreme Court decisions.

Like the scholars, the lower federal courts are split on the issue, although
their split is the opposite of the scholarly one: most federal courts which have
stated a firm position have said that the Second Amendment is not an individual
right. [FN13]
The federal courts which follow the academic Standard Model *105are in the minority, although the ranks of the minority have grown in recent
years. [FN14]
The courts on both sides, like the scholars,
insist that they are following the Supreme Court.

One approach to untangling the conflict has been to see if the lower federal
courts have actually been following Miller. In Can the Simple Cite be Trusted?,
Brannon Denning makes a persuasive argument that some lower courts have cited
Miller for propositions which cannot reasonably be said to flow from Miller. [FN15]
But part of the problem with deciding whether the courts or the scholars are
being faithful to Miller is that Miller is such an opaque opinion.

Miller grew out of a 1938 prosecution of two bootleggers (Jack Miller and Frank
Layton) for violating the National Firearms Act by possessing a sawed-off
shotgun without having paid the required federal tax. The federal district court
dismissed the indictment on the grounds that the National Firearms Act violated
the Second Amendment. [FN16]
Freed, Miller and Layton promptly absconded, *106and thus only the government's side was heard when the case was argued
before the Supreme Court. [FN17]

Unfortunately, Miller was written by Justice James McReynolds, arguably one of
the worst Supreme Court Justices of the twentieth century. [FN18]
The opinion nowhere explicitly says that the Second Amendment does (or does not
guarantee) an individual right. The key paragraph of the opinion is this:

In the absence of any evidence tending to show that possession or use of a
"shotgun having a barrel of less than eighteen inches in length" at
this time has some reasonable relationship to the preservation or efficiency of
a well regulated
militia, we cannot say that the Second Amendment guarantees the right to keep
and bear such an instrument. Certainly it is not within judicial notice that
this weapon is any part of the ordinary military equipment or that its use could
contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154,
158. [FN19]

This paragraph can plausibly be read to support either the Standard Model or the
State's Rights theory. By the State's Right theory, the possession of a gun by
any individual has no constitutional protection; the Second Amendment only
applies to persons actively on duty in official state militias.

In contrast, the Standard Model reads the case as adopting the "civilized
warfare" test of nineteenth century state Supreme Court cases: individuals
have a right to own arms, but only the type of arms that are useful for militia
service; for example, ownership of rifles is protected, but not ownership of
Bowie knives (since Bowie knives were allegedly useful only for fights and
brawls). [FN20]
The case cited by the Miller Court, Aymette v. State [FN21],
is plainly in the Standard Model, since it interprets the Tennessee
Constitution's right to arms to protect an individual right to own firearms, but
only firearms suitable for militia *107use; in dicta, Aymette states that the Second Amendment has the same
meaning. [FN22]

While scholars can contend for different meanings, it is true that, as a matter
of pure linguistics, the Miller decision does not foreclose either the Standard
Model or the State's Rights theory.

And what is one to make of the opinion's penultimate paragraph, stating,
"In the margin some of the more important opinions and comments by writers
are cited." [FN23]
In the attached footnote, the opinion cites two prior U.S. Supreme Court
opinions and six state court opinions, all of which treat the Second Amendment
or its state analogue as an individual right, even as the opinions uphold
particular gun controls. [FN24]
The footnote likewise cites treatises by Justice Joseph Story and Thomas Cooley
explicating the Second Amendment as an individual right. [FN25]
But the same Miller footnote also cites a Kansas Supreme Court *108decision which is directly contrary; that case holds that the right to arms
in Kansas belongs only to the state government, and in dicta makes the same
claim about the Second Amendment. [FN26]

The Miller footnote begins with the phrase "Concerning the militia --"
but several of the cases cited have nothing to do with the militia. For example,
Robertson v. Baldwin (discussed infra) simply offers dicta that laws which
forbid the carrying of concealed weapons by individuals do not violate the
Second Amendment. [FN27]

If Miller were the only source of information about the Second Amendment, the
individual right vs. government right argument might be impossible to resolve
conclusively. Fortunately, the Supreme Court has addressed the Second Amendment in
thirty-four other cases--although most of these cases appear to have escaped the
attention of commentators on both sides of *109the issue. This article ends the bipartisan scholarly neglect of the Supreme
Court's writings on the Second Amendment. [FN28]

The neglected cases are not, of course, directly about the Second Amendment.
Rather, they are about other issues, and the Second Amendment appears as part of
an argument intended to make a point about something else. [FN29]
Nevertheless, all the dicta may be revealing. If Henigan and Bogus are correct,
then the dicta should treat the Second Amendment as a right which belongs to
state governments, not to American citizens. And if the Standard Model is
correct, then the Amendment should be treated as an individual right. Moreover,
the line between dicta and ratio decendi is rarely firm,
[FN30]
and one day's dicta may become another day's holding. [FN31]

C.S. Lewis observed that proofs (or disproofs) of Christianity found in
apologetic documents are sometimes less convincing than offhand remarks made in
anthropology textbooks, or in other sources where Christianity is only treated
incidentally. The Supreme Court cases in which the Supreme Court mentions the
Second Amendment only in passing are similarly illuminating. [FN32]

*110Before commencing with case-by-case analysis, let me present a chart which
summarizes the various cases. [Click here for
the Chart.] The columns in chart are self-explanatory, but I
will explain two of them anyway. A "yes" answer in the
"Supportive of individual right in 2d Amendment?"
column means only that the particular case provides support for the individual
rights theory; although the part of the case addressing the Second Amendment
might make sense only if the Second Amendment is considered an individual right,
the case will not directly state that proposition. If the case is labeled
"ambiguous," then the language of the case is consistent with both the
Standard Model and with State's Rights.

The next column asks, "Main clause of 2d A. quoted without introductory
clause?" The National Rifle Association and similar groups are frequently
criticized for quoting the main clause of the Second Amendment ("the right
of the people to keep and bear Arms, shall not be infringed") without
quoting the introductory clause ("A well-regulated Militia, being necessary
to the security of a free State"). [FN33]
The critics argue that the introductory, militia, clause controls the meaning of
the main, right to arms, clause. They contend that to omit the introductory
clause is to distort completely the Second Amendment's meaning. (And if, as
these critics argue, the Second Amendment grants a right to state governments
rather than to individuals, then omission of the introductory clause is indeed
quite misleading.) On the other hand, if the Second Amendment is about a right
of people (the main clause), and the introductory clause is useful only to
resolve gray areas (such as what kind of arms people can own), then it is
legitimate sometimes to quote the main clause only. As the chart shows, the
Supreme Court has quoted the main clause alone much more
often than the Supreme Court has quoted both clauses together.

This Supreme Court quoting pattern is consistent with the theory Eugene Volokh's
article, The Commonplace Second Amendment, which argues that the Second
Amendment follows a common pattern of constitutional drafting from the Early
Republic: there is a "purpose clause," followed by a main clause. [FN34]
*111For example, Rhode Island's freedom of the press provision declared:
"The liberty of the press being essential to the security of freedom in a
state, any person may publish sentiments on any subject, being responsible for
the abuse of that liberty." [FN35]
This provision requires judges to protect every person's right to "publish
sentiments on any subject"--even when the sentiments are not
"essential to the security of freedom in a state," or when they are
detrimental to freedom or security.

Similarly, the New Hampshire Constitution declared: "Economy being a most
essential virtue in all states, especially in a young one; no pension shall be
granted, but in consideration of actual services, and such pensions ought to be
granted with great caution, by the legislature, and never for more than one year
at a time." [FN36]
This provision makes all pensions of longer than one year at a time void--even
if the state is no longer "a young one" and no longer in need of
economy. Volokh supplies dozens of similar examples from state constitutions. [FN37]

Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have
quoted
the Second Amendment, twenty-three contain only a partial quote. This quoting
pattern suggests that, generally speaking, Supreme Court justices have not
considered the "purpose clause" at the beginning of the Second
Amendment to be essential to the meaning of the main clause.

*112

I. The Rehnquist Court

Since William Rehnquist was appointed Chief
Justice in 1986, six different opinions have addressed the
Second Amendment. The authors of the opinions include the small left wing of the
Court (Justices Stevens and Ginsburg), the Court's right wing (Justices Thomas
and Rehnquist), and the Court's centrist Justice O'Connor. Every one of the
opinions treats the Second Amendment as an *114individual right. Except for Justice Breyer, every sitting Supreme Court
Justice has joined in at least one of these opinions-- although this joinder
does not prove that the joiner necessarily agreed with what the opinion said
about the Second Amendment. Still, five of the current Justices have written an
opinion in which the Second Amendment is considered an individual right, and
three more Justices have joined such an opinion.

After serving some time in state prison, Spencer was released on parole.
[FN38]
While free, he was accused but not convicted of rape, and his parole was
revoked. [FN39]
He argued that his parole revocation was unconstitutional. [FN40]
But before his constitutional claim could be judicially resolved, his sentence
ended, and he was released. [FN41]
The majority of the Supreme Court held that since Spencer was out of prison, his
claim was moot, and he had no right to pursue his constitutional lawsuit.

Justice Stevens, in dissent, argued that being found to have perpetrated a crime
(such as the rape finding implicit in the revocation of Spencer's parole) has
consequences besides prison:

An official determination that a person has committed a crime may cause two
different kinds of injury. It may result in tangible harms such as imprisonment,
loss of the right to vote or to bear arms, and the risk of greater punishment if
another crime is committed. It may also severely injure the person's reputation
and good name. [FN42]
A person can only lose a right upon conviction of a crime if a person had the
right before conviction. Hence, if an individual can lose his right "to
bear arms," he must possess such a right. Justice Stevens did not
specifically mention the Second Amendment, so it is possible that his reference
to the right to bear arms was to a right created by state constitutions, rather
than the federal one. (Forty-four states guarantee a right to arms in their
state constitution. [FN43])

*117

When particular gun control laws are before the Supreme Court for either
statutory or constitutional interpretation, Justice Stevens is a reliable vote
to uphold the law in question, often with language detailing the harm of gun
violence. *118FN44] It is notable, then, that Justice Stevens recognizes a right to bear arms
as an important constitutional right, whose deprivation should not be shielded
from judicial review. [FN45]

Federal law provides a five year mandatory sentence for anyone who
"carries
a firearm" during a drug trafficking crime. [FN46]
Does the sentence enhancement apply when the gun is merely contained in an
automobile in which a person commits a drug trafficking crime--such as when the
gun is in the trunk? The Supreme Court majority said "yes." [FN47]
In dissent, Justice Ginsburg--joined by Justices Rehnquist, Scalia [FN48],
and Souter--argued that "carries a firearm" means to carry it so that
it is ready to use. [FN49]
In support for her view, Justice Ginsburg pointed to the Second Amendment
"keep and bear arms" as an example of the ordinary meaning of carrying
a firearm:

It is uncontested that §924(c)(1) applies when the defendant bears a firearm,
i.e., carries the weapon on or about his person "for the purpose of being
armed and ready for offensive or defensive action in case of a conflict."
Black's Law Dictionary 214 (6th ed. 1990) (defining the phrase "carry arms
or weapons"); see ante, at 5. The Court holds that, in addition,
"carries a firearm," in the context of §924(c)(1), means personally
transporting, possessing, or keeping a firearm in a vehicle, anyplace in a
vehicle.

Without doubt, "carries" is a word of many meanings, definable to mean
or include carting about in a vehicle. But that encompassing definition is not
ubiquitously *119necessary one. Nor, in my judgment, is it a proper construction of
"carries" as the term appears in §924(c)(1). In line with Bailey and
the principle of lenity the Court has long followed, I would confine
"carries a firearm," for §924(c)(1) purposes, to the undoubted
meaning of that expression in the relevant context. I would read the words to
indicate not merely keeping arms on one's premises or in one's vehicle, but
bearing them in such manner as to be ready for use as a weapon.

. . .

Unlike the Court, I do not think dictionaries, surveys of press reports, or the
Bible tell us, dispositively, what "carries" means embedded in §924(c)(1).
On definitions, "carry" in legal formulations could mean, inter alia,
transport, possess, have in stock, prolong (carry over), be infectious, or wear
or bear on one's person. At issue here is not "carries" at large but
"carries a firearm." The Court's computer search of newspapers is
revealing in this light. Carrying guns in a car showed up as the meaning
"perhaps more than one third" of the time. Ante, at 4. One is left to
wonder what meaning showed up some two thirds of the time. Surely a most
familiar meaning is, as the Constitution's Second Amendment ("keep and bear
Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate:
"wear, bear, or carry . . . upon the person or in the clothing or in a
pocket, for the purpose . . . of being armed and ready for offensive or
defensive action in a case of conflict with another person." [FN50]

Perhaps no word in the Second Amendment is as hotly contested as the word
"bear." The Standard Model scholars, following the usage of Webster's Dictionary,
[FN51]
the 1776 Pennsylvania Constitution, [FN52]
and the 1787 call for a Bill of Rights from the dissenters at the Pennsylvania
Ratification Convention read the word "bear" as including ordinary
types of carrying. [FN53]
Thus, a person carrying a gun for personal protection could be said to be
bearing arms. If individuals can "bear arms," then the right to
"bear arms" must belong to individuals.

In contrast, Garry Wills (who argues that the Second Amendment has "no real
meaning" [FN54])
argues that "bear" has an exclusively military context. [FN55]
It is impossible, he writes, to "bear arms" unless once is engaged in
active militia service. *120Hence, the right to "bear arms" does not refer to a right of
individuals to carry guns. [FN56]

Justice Ginsburg's opinion plainly takes the former approach. She believes that
"to bear arms" is to wear arms in an ordinary way. [FN57]

In Printz v. United States, the Supreme Court voted 5 to 4 to declare part of
the Brady Act unconstitutional, because the Act ordered state and local law
enforcement officials to perform a federal background check on handgun buyers. [FN58]
While the Printz decision was not a Second Amendment case, Printz did result in
some Second Amendment language from Justice Clarence Thomas's concurring
opinion.

Justice Thomas joined in Justice Scalia's five-person
majority opinion, but he also wrote a separate concurring opinion--an opinion
which shows that all the *122Second Amendment scholarship in the legal journals is starting to be noticed
by the Court.

The Thomas concurrence began by saying that, even if the Brady Act did not
intrude on state sovereignty, it would still be unconstitutional. [FN59]
The law was enacted under the congressional power "to regulate commerce. .
.among the several states." [FN60]
But the Brady Act applies to commerce that is purely intrastate--the sale of
handgun by a gun store to a customer in the same state. [FN61]
Justice Thomas suggested that although the interstate commerce clause has, in
recent decades, been interpreted to extend to purely intrastate transactions,
that interpretation is wrong. [FN62]

Even if the Brady Act were within the Congressional power over interstate
commerce, Justice Thomas continued, the Act might violate the Second Amendment:

. . . .Even if we construe Congress' authority to regulate interstate commerce
to encompass those intrastate transactions that "substantially affect"
interstate commerce, I question whether Congress can regulate the particular
transactions at issue here. The Constitution, in addition to delegating certain
enumerated powers to Congress, places whole areas outside the reach of Congress'
regulatory authority. The First Amendment, for example, is fittingly celebrated
for preventing Congress from "prohibiting the free exercise" of religion
or "abridging the freedom of speech." The Second Amendment similarly
appears to contain an express limitation on the government's authority. That
Amendment provides: "[a] well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear arms, shall
not be infringed." This Court has not had recent occasion to consider the
nature of the substantive right safeguarded by the Second Amendment. [n.1] If,
however, the Second Amendment is read to confer [FN63]
a personal right to "keep and bear arms," *123a colorable argument exists that the Federal Government's regulatory scheme,
at least as it pertains to the purely intrastate sale or possession of firearms,
runs afoul of that Amendment's protections. [n.2] As the parties did not raise
this argument, however, we need not consider it here. Perhaps, at some future
date, this Court will have the opportunity to determine whether Justice Story
was correct when he wrote that the right to bear arms "has justly been
considered, as the palladium of the liberties of a republic." 3 J. Story,
Commentaries §1890, p. 746 (1833). In the meantime, I join the Court's opinion
striking down the challenged provisions of the Brady Act as inconsistent with
the Tenth Amendment. [FN64]

There are several notable elements in the Thomas concurrence. First, Justice
Thomas equates the Second Amendment with the First Amendment. This is consistent
with the rule from the Valley Forge case that all parts of the Bill of Rights
are on equal footing; none is preferred (or derogated). [FN65]
He implicitly
rejected second-class citizenship for the Second Amendment.

Justice Thomas then suggests that the Brady Act could be invalid under the
Second Amendment. [FN66]
Regarding right to bear arms provisions in state constitutions, some state
courts have upheld various gun restrictions as long as all guns are not banned. [FN67]
Justice Thomas plainly does not take such a weak position in defense of the
Second Amendment. [FN68]
His implication is that by requiring government permission and a week-long prior
restraint on the right to buy a handgun, the Brady Act infringed the Second
Amendment.

And of course by recognizing that handguns are a Second Amendment issue, Justice
Thomas implicitly rejects the argument that the Second Amendment merely protects
"sporting weapons" (usually defined as a subset of rifles and
shotguns). [FN69]

Noting that the Second Amendment was not at issue in the case before the Court
(the case was brought by sheriffs who did not want to be subject to federal
commands, rather by gun buyers or gun dealers), Justice Thomas gently urges the
rest of the Court to take up a Second Amendment case in the future. And he
leaves no doubt about his personal view of the issue, as he quotes the 19th
century legal scholar and Supreme Court Justice Joseph Story, who saw the right
to bear arms "as the palladium of the liberties of a republic." [FN70]
*124

There are two footnotes in the Second Amendment portion of the Thomas
concurrence. In the first footnote, the Justice states that the Supreme Court has
not construed the Second Amendment since the 1939 case United States v. Miller
(which upheld the National Firearms Act's tax and registration requirement for
short shotguns [FN71]).
He added that the Supreme Court has never directly ruled on the individual
rights issue.

1 Our most recent treatment of the Second Amendment occurred in
United
States v. Miller, 307 U.S. 174 (1939), in which we reversed the District
Court's invalidation of the National Firearms Act, enacted in 1934. In Miller,
we determined that the Second Amendment did not guarantee a citizen's right to
possess a sawed off shotgun because that weapon had not been shown to be
"ordinary military equipment" that could "contribute to the
common defense." Id., at 178. The Court did not, however, attempt to
define, or otherwise construe, the substantive right protected by the Second
Amendment.

The second footnote addressed the growing scholarship on the Second Amendment:

2 Marshaling an impressive array of historical evidence, a growing body of
scholarly commentary indicates that the "right to keep and bear arms"
is, as the Amendment's text suggests, a personal right. See, e.g., J. Malcolm,
To Keep and Bear Arms: The Origins of an Anglo American Right 162 (1994); S.
Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right
(1984); Van Alstyne, The Second Amendment and the Personal Right to Arms, 43
Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth
Amendment, 101
Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward
an Afro Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The
Embarrassing Second Amendment, 99
Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning
of the Second Amendment, 82
Mich. L. Rev. 204 (1983). Other scholars, however, argue that the Second
Amendment does not secure a personal right to keep or to bear arms. See, e.g., Bogus,
Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101
Yale L. J. 551 (1991); Brown, Guns, Cowboys, Philadelphia Mayors, and Civic
Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99
Yale L. J. 661 (1989); Cress, An Armed Community: The Origins and Meaning of
the Right to Bear Arms, 71 J. Am. Hist. 22 (1984). Although somewhat overlooked
in our jurisprudence, the Amendment has certainly engendered considerable
academic, as well as public, debate.

In the second footnote, Justice Thomas points out that the text of the Second
Amendment (which refers to "the right of the people") suggests that
the Second Amendment right belongs to individuals, not the government.

*125

As Justice Thomas notes, a large body of legal scholarship in the last
fifteen years has examined the historical evidence, and found very strong proof
that the Second Amendment guarantees an individual right. [FN72]

The Supreme Court does not always follow the viewpoint of the legal academy.
But
for most of this century, the Court has always been influenced by the academy's
opinion. In the 1940s, for example, legal scholars paid almost no attention to
the Second Amendment, and neither did the Supreme Court; in that decade, the
Second Amendment was mentioned only once, and that mention was in a lone
dissent. [FN73]
But starting in the late 1970s, a Second Amendment revolution began to take
place in legal scholarship. That an intellectual revolution was in progress
became undeniable after the Yale Law Journal published Sanford Levinson's widely
influential article The Embarrassing Second Amendment in 1989. [FN74]
Since then, scholarly attention to the Second Amendment has grown even more
rapidly. And more importantly, for purposes of this article, the Supreme Court
Justices have raised the Second Amendment in six different cases in 1990-98. Six
mentions in nine years hardly puts the Second Amendment on the same plane as the
First Amendment; but six times in one decade is a rate six times higher than in
the 1940s.

Albright involved a Section 1983 civil rights lawsuit growing out of a malicious
decision to prosecute someone for conduct which was not crime under the relevant
state law. [FN75]
The issue before the Supreme Court was whether the prosecutor's action violated
the defendant's Fourteenth Amendment Due Process rights. The majority said
"no," in part because the claim (growing out of
the victim's unlawful arrest) would be better presented as a Fourth Amendment
claim. [FN76]

Justice Stevens dissented, and was joined by Justice Blackmun; part of the
dissent quoted Justice Harlan's analysis of the meaning of the Fourteenth
Amendment, and the Fourteenth Amendment's protection of the "right to keep
and bear arms":

*126At bottom, the plurality opinion seems to rest on one fundamental
misunderstanding: that the incorporation cases have somehow
"substituted" the specific provisions of the Bill of Rights for the
"more generalized language contained in the earlier cases construing the
Fourteenth Amendment." Ante, at 7. In fact, the incorporation cases
themselves rely on the very "generalized language" the Chief Justice
would have them displacing. Those cases add to the liberty protected by the Due
Process Clause most of the specific guarantees of the first eight Amendments,
but they do not purport to take anything away; that a liberty interest is not
the subject of an incorporated provision of the Bill of Rights does not remove
it from the ambit of the Due Process Clause. I cannot improve on Justice
Harlan's statement of this settled proposition:

"The full scope of the liberty guaranteed by the Due Process Clause cannot
be found in or limited by the precise terms of the specific guarantees elsewhere
provided in the Constitution. This "liberty" is not a series of
isolated points pricked out in terms of the taking of property; the freedom of
speech, press, and religion; the right to keep and bear
arms; the freedom from unreasonable searches and seizures; and so on. It is a
rational continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints . . . and which
also recognizes, what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state needs asserted to
justify their abridgment." Poe
v. Ullman, 367 U.S. 497, 543 (1961) (dissenting opinion). [FN77]

I have no doubt that an official accusation of an infamous crime constitutes a
deprivation of liberty worthy of constitutional protection. The Framers of the
Bill of Rights so concluded, and there is no reason to believe that the sponsors
of the Fourteenth Amendment held a different view. The Due Process Clause of
that Amendment should therefore be construed to require a responsible
determination of probable cause before such a deprivation is effected. [FN78]

In Poe v. Ullman, the second Justice Harlan construed the "liberty"
protected by the Fourteenth Amendment. [FN79]
Although Justice Harlan's words originally were written in dissent, they have
been quoted in later cases as the opinion of the Court. [FN80]
Fourteenth Amendment "liberty" of course belongs to individuals, not
to state governments. The point of the Fourteenth Amendment was to protect
individual liberty from state infringement.

This "liberty" is not limited to "the specific guarantees
elsewhere provided in the Constitution" including
"the right to keep and bear arms." These individual *127rights in the Harlan list, like other individual rights in the Bill of
Rights, might be included in the Fourteenth Amendment's protection of
"liberty" against state action. The point made by Justice Harlan (and
Justice Stevens, quoting Justice Harlan), is that Fourteenth Amendment
"liberty" includes things which are not part of the Bill of Rights,
and does not necessarily include every individual right which is in the Bill of
Rights.

While the Harlan quote makes no direct claim about whether the individual Bill
of Rights items should be incorporated in the Fourteenth Amendment, Justice
Harlan was plainly saying that simply because an individual right is protected
in the Bill of Rights does not mean that it is protected by the Fourteenth
Amendment. (Justice Black's view was directly opposite. [FN81])
Therefore, although the Harlan quote is not dispositive, the quote could
appropriately be used to argue against incorporating the Second Amendment into
the Fourteenth.

At the same time, the quote obviously treats the Second Amendment as an
individual right. That is why Justice Harlan used the Second Amendment (along
with the religion, speech, press, freedom from unreasonable searches, and
property) to make a point about what kind of individual rights are protected by
the Fourteenth Amendment.

As we shall see below, Justice Harlan's words are the words about the Second
Amendment
which the Supreme Court has quoted most often.

Planned Parenthood was a challenge to a Pennsylvania law imposing various
restrictions on abortion. [FN82]
In discussing the scope of the Fourteenth Amendment, Justice Sandra Day
O'Connor's opinion for the Court approvingly quoted Justice Harlan's earlier
statement that "the right to keep and bear arms" is part of the
"full scope of liberty" contained in the Bill of Rights, and made
applicable to the state by the Fourteenth Amendment. [FN83]
Although the Planned Parenthood decision was fractured, with various Justices
joining only selected portions of each others' opinions, the portion where
Justice O'Connor quoted Justice Harlan about the Fourteenth and Second
Amendments was joined by four other Justices, and represented the official
opinion of the Court.

Planned Parenthood is the second of the four Supreme Court opinions that quote
the Harlan dissent in Poe. (The other two will be discussed infra.) Had the
authors of those opinions chosen to delete the "right to keep and bear
arms" words, by using ellipses, they certainly could have done so. As we
shall see when we come to the original Harlan opinion in Poe v. Ullman, the full
Harlan analysis *128of the scope of Fourteenth Amendment liberty includes important material
which later Justices carefully avoided quoting. [FN84]

United States v. Verdugo-Urquidez [FN85]
involved American drug agents' warrantless search of a Mexican's homes in
Mexicali and San Felipe, Mexico. When Verdugo-Urquidez was prosecuted in a
United States court for distribution of marijuana, his attorney argued that the
evidence seized from his homes could not be used against him. [FN86]
If the homes in question had been located in the United States and owned by an
American, the exclusionary rule clearly would have forbade the introduction of
the evidence. But did the U.S. Fourth Amendment protect Mexican citizens in
Mexico?

Chief Justice Rehnquist's majority opinion said "no." Part of the
Court's analysis investigated who are "the people" protected by the
Fourth Amendment:

"[T]he people" seems to have been a term of art employed in select
parts of the Constitution. The preamble declares that the Constitution is
ordained and established by "the People of the United States." The
Second Amendment protects "the right of the people to keep and bear
Arms," and the Ninth and Tenth Amendment provide that certain rights and
power are retained by and reserved to "the people." See also U.S.
Const., Amdt. 1 ("Congress shall make no law. . .abridging. . .the right of
the people peaceably to assemble") (emphasis added); Art I, § 2, cl. 1
("The House of Representatives shall be composed of
Members chosen every second Year by the People of the Several
States")(emphasis added). While this textual exegesis is by no means
conclusive, it suggests that "the People" protected by the Fourth
Amendment, and by the First and Second Amendment, and to whom rights are
reserved in the Ninth and Tenth Amendments, refers to a class of persons who are
part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community. [FN87]
*129

By implication therefore, if "the people" whose right to arms is
protected by the Second Amendment are American people, then "the right of
the people" in the Second Amendment does not mean "the right of the
states." [FN88]
To adopt the *130Henigan/Bogus theory, and find that the Second Amendment "right of the
people" belongs to state governments would require a rejection of Verdugo's
explication of who are "the people" of the Second Amendment and the
rest of the Constitution.

The dissent by Justice Brennan would have given "the people" a broader
reading: "'The People' are 'the governed." ' [FN89]
The dissent's reading is likewise consistent only with the Standard Model, and
not with the State's Rights view. If "the people" of the Second
Amendment are "the governed," then the "right of the people"
must belong to people who are governed, and not to governments. [FN90]

*131

Interestingly, the majority opinion's analysis of "the people"
protected
by the Bill of Rights was an elaboration of a point made by the dissenting
opinion from the Ninth Circuit Court of Appeals, when the majority had held that
Mr. Verdugo was entitled to Fourth Amendment protections. [FN91]
When the Verdugo case went to the Supreme Court, the Solicitor General's office
quoted from Ninth Circuit's dissent, but used ellipses to remove the dissent's
reference to the Second Amendment. [FN92]
The Supreme Court majority, of course, put the Second Amendment back in.

II. The Burger Court

The Second Amendment record of the Burger
Court is more complex than that of the Rehnquist Court. The Rehnquist Court
dicta about the Second Amendment points exclusively to the Second Amendment as
an individual right. Indeed, except for Justice Thomas's observation that Miller
did not resolve the individual rights issue, nothing in the Rehnquist Court's
record contains even a hint that the Second Amendment might not be an individual
right. In contrast, the Burger Court's dicta are not so consistent.

The one Supreme Court majority opinion which is fully consistent with the
Henigan/Bogus state's rights theory is Lewis v. United States.[FN93]
Interestingly, the same advocates who dismiss Verdugo because it was not a Second
Amendment case rely heavily on Lewis even though it too is not a Second
Amendment
*132case. The issue in Lewis was primarily statutory interpretation, and
secondarily the Sixth Amendment. A federal statute imposes severe penalties on
persons who possess a firearm after conviction for a felony. [FN94]
In 1961, Lewis had been convicted of burglary in Florida [FN95];
since Lewis was not provided with counsel, his conviction was invalid under the
rule of Gideon v. Wainright. [FN96]
The question for the Court was whether Congress, in enacting the 1968 law
barring gun possession by a person who "has been convicted by a court of
the United States or of a State. . .of a felony," meant to include persons
whose convictions had been rendered invalid by the 1963 Gideon case. Writing for
a six-justice majority, Justice Blackmun held that the statutory language did
apply to person with convictions invalid under Gideon. [FN97]

Given the non-existent legislative history on the point, Justice Blackmun was
forced to be rather aggressive in his reading of Congressional intent. For
example, Senator Russell Long, the chief sponsor of the Gun Control Act of 1968,
had explained that "every citizen could possess a gun until the commission
of his first felony. Upon his conviction, however, Title VII would deny. . .the
right to possess a firearm. . . ." [FN98]
This supposedly showed Congressional intent to disarm people like Lewis, since
the Senator had "stressed conviction, not a 'valid' conviction." [FN99]
By this reasoning, the
Gun Control Act of 1968 would likewise apply to Scottsboro Boys; they had been
tortured into confessing a crime which they did not commit, but they did indeed
have a "conviction" for murder, even if not "a valid
conviction." [FN100]
Justice Brennan's dissent pointed out that the majority's reasoning would impose
the Gun Control Act even on people whose convictions had been overturned by an
appellate court. [FN101]

Did the Gun Control Act (as interpreted by the Court) violate equal protection?

officer
in a union, or practicing medicine. As to whether possessing a firearm is a
constitutional right, the opinion does not say. But the opinion could certainly
be cited for support that arms possession is not "fundamental" enough
to be protected by the Fourteenth Amendment's due process clause.

In a footnote of the section supporting the rationality of a statute disarming
convicted felons, Justice Blackmun wrote:

United
States v. Miller, 307 U.S. 174, 178 (the Second Amendment guarantees no
right to keep and bear a firearm that does not have "some reasonable
relationship to the preservation or efficiency of a well- regulated
militia"); United
States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F. 2d 1288,
1290, n. 5 (CA7 1974); United
States v. Johnson, 497 F.2d 548 (CA4 1974); Cody
v. United States, 460 F.2d 34 (CA8), cert. denied, 409
U.S. 1010 (1972)(the latter three cases holding, respectively, that
1202(a)(1), 922(g), and 922(a)(6) do not violate the Second Amendment). [FN103]

Attorney Stephen Halbrook (the successful plaintiffs' attorney in the Supreme
Court gun cases of Printz v. United States [FN104],
and United States v. Thompson/Center [FN105])
reads Lewis as reflecting the principle that since a legislature may deprive a
felon "of other civil liberties, and may even deprive
a felon of life itself--felons have no fundamental right to keep and bear
arms." [FN106]

As a matter of formal linguistics, Halbrook's reading of Lewis is not
impermissible. But it is also possible to read the Lewis opinion as saying, in
effect, "since no-one has a right to have a gun, a law against felons
owning guns does not infringe on Constitutional rights."

What of the three Court of Appeals cases cited by Justice Blackmun?
*134The Three Winchester 30-30 Caliber Lever Action Carbinescase upholds the
forfeiture of guns possessed by a convicted felon. The footnote cited by the
Supreme Court states:

Apparently at the district court level the defendant argued that 18 U.S.C. App.
§ 1202 was invalid as an "infringement of the second amendment's
protection of the right to bear arms, the first amendment's prohibition of bills
of attainder and ex post facto laws, and the fourteenth amendment's due process
clause." These arguments were appropriately rejected. [citations omitted] [FN107]

The Cody [FN108]
case upheld the conviction of a felon who falsified a federal gun registration
form and falsely claimed that he had no felony conviction. Regarding Cody's
Second Amendment claim, the Eighth Circuit stated:

In Johnson, the Fourth Circuit upheld the Gun Control Act as applied to a
convicted felon who transported a firearm in interstate commerce. [FN111]
Regarding Johnson's Second Amendment claim, the Circuit wrote that "The
courts have consistently held that the Second Amendment only confers a
collective right of keeping and bearing arms which must bear a 'reasonable
relationship to the preservation or efficiency of a well regulated
militia." ' [FN112]

Now a "collective right" can be read two ways: it can be like
"collective property" in a Communist property; since it belongs to all
the people collectively, it belongs only to the government. Alternatively, a
"collective right" to arms can be a right of all the people to have a
militia, and for this purpose, *135each person has a right to possess arms for militia purposes (but not to
possess arms for other purposes, such as self-defense). [FN113]
Indeed, this is the approach taken by Aymette, the Tennessee Supreme Court case
which is the sole citation for the rule of decision in Miller; Aymette states
that the Second Amendment protects individual possession of militia-type arms,
so that those individuals may collectively exercise their rights in a militia. [FN114]

Neither Lewis nor its three cited Court of Appeals cases claim that the Second
Amendment right belongs to state governments. And none of them goes so far as to
claim that law-abiding American citizens have no Second Amendment right to
possess arms. But Lewis and its cited cases, especially Johnson, certainly come
close to that proposition. Although Halbrook's reading of Lewis is not formally
wrong, the spirit of Lewis has little in common with the Standard Model of the
Second Amendment.

If Lewis were the Supreme Court's last word on the Second Amendment, the
Standard Model, no matter how accurate in its assessment of original intent,
would seem on shaky ground as a description of contemporary Supreme Court
doctrine. But Lewis, while not ancient, is no longer contemporary. As discussed
above, six subsequent Supreme Court cases have addressed the Second Amendment as
an individual right. Only two justices from the Lewis majority remain on the
Court, and both of those justices (Rehnquist and Stevens) have written 1990s
opinions which regard the Second Amendment as an individual right.

The Rehnquist cases suggest that it is unlikely that the current Court would
read
Lewis's hostile but ambiguous language as negating an individual right.

Not only do the Rehnquist cases impede any effort to read Lewis as the
definitive state's right case, so does a case decided four years before Lewis.
The Moore v. East Cleveland litigation arose out of a zoning regulation which
made it illegal for extended families to live together. [FN115]
The plurality opinion by Justice Powell found in the Fourteenth Amendment a
general protection for families to make their own living arrangements. [FN116]
Thus, the East Cleveland law, which, for example, forbade two minor cousins to
live with their grandmother, [FN117]
was unconstitutional.

*136In discussing the boundaries of the Fourteenth Amendment, the Powell
plurality opinion for the Court quoted from Justice Harlan's dissent in Poe v.
Ullman. This was the same language that was later quoted by Justice O'Connor's
majority opinion in Planned Parenthood v. Casey, [FN118]
and by Justice Stevens' dissent in Albright v. Oliver [FN119]:

But unless we close our eyes to the basic reasons why certain rights associated
with the family have been accorded shelter under the Fourteenth Amendment's Due
Process Clause, we cannot avoid applying the force and rationale of these
precedents to the family choice involved in this case.

Understanding those reasons requires careful attention to this Court's function
under the Due Process clause. Mr. Justice Harlan described it eloquently:

Due process cannot be reduced to any formula; its content cannot be determined
by reference to any code. . .The balance of which I speak is the balance struck
by this country, having regard to what history teaches are the traditions from
which it developed as well as the traditions from which it broke. That tradition
is a living thing. . . .

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be
found in or limited by the precise terms of the specific guarantees elsewhere
provided in the Constitution. This 'liberty" is not a series of isolated
points pricked out in terms of the taking of property; the freedom of speech,
press, and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures; and so on. It is a rational continuum which
broadly speaking, includes freedom from all substantial arbitrary impositions
and purposeless restraints" Poe v. Ullman, supra, at 542-543 (dissenting
opinion). [FN120]

In dissent, Justice White also quoted from Justice Harlan's words in Poe. While
Justice White included the language about the Second Amendment, he did not
include the preceding paragraph about tradition. [FN121]

Since the Fourteenth Amendment belongs exclusively to individuals, and not to
state governments, the only possible reading of Moore v. East Cleveland is that the
Second Amendment protects an individual right.

The "tradition" paragraph from Justice Harlan, quoted by Justice
Powell, strengthens an argument for incorporating the Second Amendment. The
right to arms had roots as one of the "rights of Englishmen"
recognized by the English 1689 Bill of Rights, [FN122]
and was adopted in nine of the first fifteen states' *137constitutions. [FN123]
When the Constitution was proposed, five state ratifying conventions called for
a right to arms--more than for any other single right that became part of the
Bill of Rights. [FN124]
With the exception of a single concurring opinion by an Arkansas judge in 1842, [FN125]
every known judicial opinion and scholarly commentary from the nineteenth
century treated the Second Amendment as an individual right. [FN126]

Justice Harlan's "tradition is a living thing" analysis also looks at
whether the right in question is supported by modern "tradition." The
right to arms fares well under this analysis too. Between a third and a half of
all American households choose to own firearms, [FN127]
and many others own other types of "arms" (such as edged weapons)
which might fall within the scope of protected "arms." [FN128]
Today, forty-four state constitutions guarantee a right to arms [FN129];
in 15 states in the last three decades, voters have added or strengthened an
arms right to their state constitution, always by a very large majority. [FN130]
Twenty years ago, only a few states allowed ordinary
citizens to obtain a permit carry a concealed handgun for protection; now
twenty-nine states have "shall issue" laws, and two states require no
permit at all. [FN131]

Contrast all the "traditional" support for the right to arms with the
absence of such support for the Fifth Amendment's guarantee against the taking
of property without due process and just compensation. No state ratifying
convention had demanded such a clause, and no such right was recognized in in
the *138English Bill of Rights. [FN132]
If the just compensation is "traditional" enough to have been
incorporated, as it has been, [FN133]
the argument for incorporating the Second Amendment is all the stronger.

But while the Harlan language quoted in East Cleveland has favorable
implications for Second Amendment incorporation, East Cleveland does not itself
perform the incorporation. [FN134]

And while East Cleveland's implication for the Second Amendment as an individual
right seems clear enough under its own terms, Justice Powell's personal views
appear to have changed after 1976. After retiring from the Court, in 1988 he
gave a speech to the American Bar Association in which he said that the
Constitution should not be construed to guarantee a right to own handguns [FN135];
this speech was not necessarily inconsistent with East Cleveland, since a Second
Amendment right to arms might exclude some types of arms. But in 1993, Justice
Powell went even further, suggesting in a television interview
that the Constitution should not be read to as guaranteeing a right to own even
sporting guns. [FN136]

*139Whatever the evolution of Justice Powell's thoughts about gun rights, the
only words he ever put in the United States Reports treat the Second Amendment
as an individual right.

The only written opinion from a Supreme Court Justice which plainly rejects an
individual right came from Justice Douglas, dissenting in the 1972 case of Adams
v. Williams. [FN137]
Acting on a tip, a police officer stopped a motorist for questioning, and then
grabbed a revolver hidden in the driver's waistband. [FN138]
The Supreme Court majority upheld the officer's actions as a reasonable effort
to protect his safety. [FN139]

Justice Douglas, a strong defender of the Fourth Amendment right to be free from
unreasonable searches, dissented. [FN140]
After discussing Fourth Amendment issues, Justice Douglas then editorialized in
favor of handgun control and prohibition, and asserted that the Second Amendment
posed no barrier to severe gun laws:

The police problem is an acute one not because of the Fourth Amendment, but
because of the ease with which anyone can acquire a pistol. A powerful lobby
dins into the ears of our citizenry that these gun purchases are constitutional rights
protected by the Second Amendment, which reads, "A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed."

There is under our decisions no reason why stiff state laws governing the
purchase and possession of pistols may not be enacted. There is no reason why
pistols may not be barred from anyone with a police record. There is no reason
why a State may not require a purchaser of a pistol to pass a psychiatric test.
There is no reason why all pistols should not be barred to everyone except the
police.

The leading case is United
States v. Miller, 307 U.S. 174, upholding a federal law making criminal the
shipment in interstate commerce of a sawed-off shotgun. The law was upheld,
there being no evidence that a sawed-off shotgun had "some reasonable
relationship to the preservation or efficiency of a well regulated
militia." Id.,
at 178. The Second Amendment, it was held, "must be interpreted and
applied" with the view of maintaining a "militia."

"The Militia which the States were expected to maintain and train is set in
contrast with Troops which they were forbidden to keep without the consent *140of Congress. The sentiment of the time strongly disfavored standing armies;
the common view was that adequate defense of country and laws could be secured
through the Militia - civilians primarily, soldiers on occasion." Id.,
at 178-179.

Critics
say that proposals like this water down the Second Amendment. Our decisions
belie that argument, for the Second Amendment, as noted, was designed to keep
alive the militia. But if watering-down is the mood of the day, I would prefer
to water down the Second rather than the Fourth Amendment. I share with Judge
Friendly a concern that the easy extension of Terry
v. Ohio, 392 U.S. 1, to "possessory offenses" is a serious
intrusion on Fourth Amendment safeguards. "If it is to be extended to the
latter at all, this should be only where observation by the officer himself or
well authenticated information shows 'that criminal activity may be afoot."
' 436 F.2d, at 39, quoting Terry v. Ohio, supra, at 30. [FN141]

Justice Douglas's statement is a clear affirmation of the anti-individual
interpretation of the Second Amendment which is espoused by the anti-gun
lobbies. Since Justice Douglas was writing in dissent, his opinion creates no
legal precedent. Nevertheless, the opinion is emblematic of the belief of some
civil libertarians that the move to "water down" the Fourth Amendment
can be forestalled by watering down the Second Amendment.

Justice Brennan did not join the Douglas dissent, but instead wrote his own.
Justice Brennan presciently noted that the Court's loose standard for "stop
and frisk" would become a tool for police officers to search people at
will, with officer safety often serving as a mere pretext. [FN142]
(Adams v. Williams is one of the key cases opening the door to the broad variety
of warrantless searches which are now allowed.) Justice
Brennan also noted the illogic of allowing stop-and-frisk for guns in a state
which allows citizens to carry concealed handguns. [FN143]
(Connecticut was one of the first states to adopt "shall issue" laws
for concealed handgun permits; now, thirty-one states have such laws. [FN144])

Justice Marshall's dissent made a similar point, noting that after the officer
discovered the gun, he immediately arrested Williams, without asking if Williams
had a permit. [FN145]

The year after Justice Douglas took a clear stand against individual Second
Amendment rights in Adams, Justice Stewart authored an opinion in the opposite
direction.

The majority opinion in Roe v. Wade, [FN146]
written by Justice Harry Blackmun, has been justly criticized for having no
connection with the text of the Constitution, and only a tenuous connection with
the prior precedents of the Supreme Court. [FN147]
Justice Potter Stewart, perhaps recognizing the weakness of the Blackmun
opinion, authored a concurring opinion coming to the same result as Justice
Blackmun, but attempting to ground the result more firmly in precedent. [FN148]
As part of the analysis arguing that the right to abortion was part of the
"liberty" protected by the Fourteenth Amendment, Justice Stewart
quoted Justice Harlan's dissenting opinion in Poe v. Ullman [FN149],
which had listed the right to keep and bear arms as among the liberties
guaranteed by the Fourteenth Amendment:

As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty
guaranteed by the Due Process Clause cannot be found in or limited by the
precise terms of the specific guarantees elsewhere provided in the Constitution.
This 'liberty' is not a series of isolated points pricked out in terms of the
taking of property; the freedom of speech, press, and religion; the right to
keep and bear arms; the freedom from unreasonable searches and seizures; and so
on. It is a rational continuum which, broadly speaking, includes a freedom from
all substantial arbitrary impositions and purposeless restraints . . . and which
also recognizes, what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state needs asserted to
justify their abridgment."
Poe
v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal)
(citations omitted). In the words of Mr. Justice Frankfurter, "Great
concepts like . . . 'liberty' . . . were purposely left to gather meaning from
experience. For they relate to the whole domain of social and economic fact, and
the statesmen who founded this Nation knew too well that only a stagnant society
remains unchanged."
National
Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting
opinion). [FN150]

Thus, the Harlan dissenting language about the Second Amendment, from Poe
v.
Ullman, has been quoted in one majority opinion (Planned Parenthood v. Casey
[FN151]),
one plurality opinion (Moore v. East Cleveland
[FN152]),
two dissents*142(Albright v. Oliver and Moore v. East
[FN153]),
and one concurrence (Roe v. Wade
[FN154]).
In contrast, the Douglas dissenting language about the Second Amendment, from
Adams v. Williams, [FN155]
has never been quoted in an opinion by any Justice.

During the Cold War and the Vietnam War, the United States Army illegally spied
on American anti-war critics. [FN156]
When the Army's conduct was to discovered, a group of individuals who had been
spied upon brought suit in federal court. [FN157]
In a sharply divided five-four decision, the Supreme Court majority held that
the suit was not justiciable. [FN158]
The plaintiffs could not show that they had been harmed by the Army, or that
there was a realistic prospect of future harm, and hence there was no genuine
controversy for a federal court to hear. [FN159]
Justice Douglas (joined by Justice Marshal) penned a fiery dissent, invoking the
long struggle to free civil life from military domination. [FN160]

Justice Douglas began by examining the power which the Constitution grants
Congress over the standing army and over the militia. [FN161]
Since Congress is not granted any power to use the army or militia for domestic
surveillance, it necessarily follows that the army has no
power on its own to begin a program of domestic surveillance. [FN162]

Moving onto a broader discussion of the dangers of military dictatorship,
Justice Douglas quoted an article which Chief Justice Earl Warren had written in
the New York University Law Review, which mentioned the Second Amendment as one
of the safeguards intended to protect America from rule by a standing army. [FN163]

As Chief Justice Warren has observed, the safeguards in the main body of the
Constitution did not satisfy the people on their fear and concern of military
dominance:

"They were reluctant to ratify the Constitution without further assurances,
and thus we find in the Bill of Rights Amendments 2 and 3, specifically
authorizing a decentralized militia, guaranteeing the right of the people to
keep and bear arms, and prohibiting the quartering of troops in any house in *143time of peace without the consent of the owner. Other Amendments guarantee
the right of the people to assemble, to be secure in their homes against
unreasonable searches and seizures, and in criminal cases to be accorded a
speedy and public trial by an impartial jury after indictment in the district
and state wherein the crime was committed. The only exceptions made to these
civilian trial procedures are for cases arising in the land and naval forces.
Although there is undoubtedly room for argument based on the frequently conflicting
sources of history, it is not unreasonable to believe that our Founders'
determination to guarantee the preeminence of civil over military power was an
important element that prompted adoption of the Constitutional Amendments we
call the Bill of Rights." [FN164]

The Earl Warren law review language is, on its face, consistent with individual
rights. He listed the right to arms among other individual rights, and he
treated the Second Amendment's subordinate clause (about the importance of
well-regulated militia) as protecting something distinct from the Second
Amendment's main clause (the right of the people to keep and bear arms). [FN165]

But based on Justice Douglas's dissent the same year in Adams, we cannot ascribe
to Justice Douglas the full implication of what Chief Justice Warren wrote in
the N.Y.U. Law Review. And while Chief Justice Warren's N.Y.U. article is
interesting, Chief Justice Warren never wrote anything about the Second
Amendment in a Supreme Court opinion.

III. The Warren, Vinson, and Hughes Courts

During the tenure of
Chief Justices Earl Warren (1953-69) and Fred Vinson (1946-53), opinions in nine
cases addressed the Second Amendment. Seven of those opinions (majority opinions
by Justices Brennan, Frankfurter, Harlan, and Jackson; a concurrence by Justice
Black; and dissents by Justices Black and Harlan)
recognized an individual right in the Second Amendment. The eighth case, an
"appeal dismissed" contained no explanation, and thus was consistent
with both the Standard Model individual right and the Henigan/Bogus state's
right. The earliest case in this period was a 1934 decision that used the Second
Amendment to support a state's right to control its militia. [FN166]

*144Burton v. Sills involved a challenge to the then- new gun licensing law in
New Jersey. [FN167]
The law did not ban any guns, but established a licensing system intended to
screen out people with serious criminal convictions, substance abusers, and the
like. After the New Jersey Supreme Court rejected a Second Amendment challenge
to the law [FN168],
the plaintiffs asked the Supreme Court to review the case; the request came in
the form of an "appeal," rather than a petition for a writ of
certiorari. [FN169]

The United States Supreme Court declined to hear the case. [FN170]
Since the case had come by appeal, rather than petition for a writ, the Court
wrote the standard phrase used at the time in denying an appeal: "The
motion to dismiss is granted and the appeal is dismissed for want of a
substantial federal question." [FN171]

The Supreme Court has explained that dismissals such as the one in Burton have
some value in guiding lower courts:

Summary affirmances and dismissals for want of a
substantial federal question without doubt reject the specific challenges
presented in the statement of jurisdiction and do leave undisturbed the judgment
appealed from. They do prevent lower courts from coming to opposite conclusions
on the precise issues presented and necessarily decided by those actions. After
Salera, for example, other courts were not free to conclude that the
Pennsylvania provision invalidated was nevertheless constitutional. Summary
actions, however, including Salera, should not be understood as breaking new
ground but as applying principles established by prior decisions to the
particular facts involved. [FN172]

Thus, following the appeal dismissal in Burton v. Sills, a lower federal court
could not conclude that the New Jersey gun licensing law violated the Second
Amendment.

The appeal dismissal does not necessarily endorse the reasoning of the state
court against which the appeal was taken. (The New Jersey Supreme Court had said
that the Second Amendment is not an individual right.
[FN173])

*145The plaintiffs in Burton had conceded that prior Supreme Court cases
(particularly the 1886 Presser case) had said that the Second Amendment limits
only the federal government, and not state governments.
[FN174]
The plaintiffs invited the courts to use the Burton case as an opportunity to
reverse prior precedent. [FN175]
The appeal dismissal in Burton may be read as the Court's
declining the invitation to re-open the issue decided by Presser.

Justice Thomas's concurrence in Printz,
[FN176]
suggesting that the Brady Act waiting period may violate the Second Amendment,
implies he would not read Burton as asserting that a New Jersey-style gun
licensing system would be constitutional if enacted by the Congress. Reading
Burton as an authorization for sweeping federal gun licensing would be
inconsistent with the Supreme Court's teaching that appeal dismissals
"should not be understood as breaking new ground."
[FN177]

Given the plaintiffs' requested grounds for Supreme Court review (to overturn
Presser) it is logical to view Burton as a re-affirmance of Presser.
[FN178]

On the other hand, since Burton contains no explicit reasoning, the case is not
directly contradictory to the Henigan/Bogus theory.

In this case, the Supreme Court incorporated the Sixth Amendment right to jury
trial, as part of the Fourteenth Amendment's "due process" guarantee. [FN179]
Justice Black, joined by Justice Douglas, concurred, and restated his argument
from Adamson v. California [FN180]
(infra) that the Fourteenth Amendment's "privileges and immunities"
clause should be read to include everything in the first eight Amendments. [FN181]
He quoted a statement made on the Senate floor by Senator
Jacob Howard, one of the lead sponsors of the Fourteenth Amendment:

peaceably to assemble and petition the Government for a redress of
grievances, a right appertaining to each and all the people; the right to keep
and bear arms; the right to be exempted from the quartering of soldiers in a
house without consent of the owner. . . . [FN182]

This 1964 case used the Fourteenth Amendment's due process clause to
incorporate
the Fifth Amendment's privilege against self-incrimination. [FN184]
Discussing the history of Fourteenth Amendment jurisprudence, Justice Brennan
listed various "Decisions that particular guarantees were not safeguarded
against state action by the Privileges and Immunities Clause or other provision
of the Fourteenth Amendment." [FN185]
Among these were "Presser
v. Illinois, 116 U.S. 252, 265 (Second Amendment)," [FN186]
along with various other cases, almost of which had been, or would be,
repudiated by later decisions on incorporation. [FN187]

As discussed above, any discussion of the Second Amendment as something which
could be incorporated, even if no incorporation has been performed, necessarily
presumes that the Second Amendment is an individual right. Justice Brennan's
explication of Presser as a case which rejects privileges and immunities
incorporation is of some significance as a modern interpretation of Presser,
since, as we shall discuss infra, the years after the1886 *147Presser decision generated a variety of opinions about whether Presser
actually had rejected incorporation.

In Konigsberg, the Court majority upheld the state of California's refusal to
admit to the practice of law an applicant who refused answer questions about his
beliefs regarding communism. [FN188]
In dissent, Justice Black argued that
First Amendment rights were absolute and that the inquiry into the prospective
lawyer's political beliefs was therefore a violation of the First Amendment. [FN189]

Justice Harlan's majority opinion rejected Justice Black's standard of
constitutional absolutism. [FN190]
The Harlan majority opinion is one of the classic examples of the
"balancing" methodology of jurisprudence. [FN191]
Justice Harlan pointed to libel laws as laws which restrict speech, but which do
not infringe the First Amendment. [FN192]
Similarly, he pointed to the Supreme Court's ruling in United States v. Miller
as an example of a law which restricted the absolute exercise of rights, but
which had been held not to be unconstitutional. [FN193]
Justice Harlan thereby treated the First and Second Amendment as
constitutionally identical: guaranteeing an individual right, but not an
absolute right.

n. 10. That view, which of course cannot be reconciled with the law relating to
libel, slander, misrepresentation, obscenity, perjury, false advertising,
solicitation of crime, complicity by encouragement, conspiracy, and the like, is
said to be compelled by the fact that the commands of the First Amendment are
stated in unqualified terms: "Congress shall make no law . . . abridging
the freedom speech, or of the press; or the right of the people peaceably to
assemble . . . ." But as Mr. Justice Holmes once said: "[T] he
provisions of the Constitution are not mathematical formulas having their essence
in their form; they are organic living institutions transplanted from English
soil. Their significance is vital not formal; it is to be gathered not simply by
taking the words and a dictionary, but by considering their origin and the line
of their growth."
Gompers
v. United States, 233 U.S. 604, 610. In this connection also compare the
equally unqualified command of the Second Amendment: "the right of the
people to keep and bear arms shall not be infringed." And see
United
States v. Miller, 307 U.S. 174.[FN194]

The year before Justice Black's absolutist interpretative model was rejected by
the majority of the Court, Justice Black had detailed the absolutist theory *148in the first annual James Madison lecture at the New York University School
of Law. [FN195]
Discussing each part of the Bill of Rights, Justice Black explained how each
guarantee was unequivocal and absolute. For example, under the Sixth Amendment,
a defendant had a "definite and absolute" right to confront the
witnesses against him. [FN196]
Regarding the Second Amendment, Justice Black explained:

Amendment Two provides that:

A well regulated Militia being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.

Although the Supreme Court has held this Amendment to include only arms
necessary to a well-regulated militia, as so construed, its prohibition is
absolute. [FN197]

Did
Justice Black mean that individuals have an absolute right to possess
militia-type arms, or did Justice Black mean that state governments have an
absolute right to arm the state militias as the state governments see fit? His
view is particularly important, because he served on the Court that decided
Miller, and he joined in the Court's unanimous opinion.

Throughout the New York University speech, Justice Black referred exclusively to
individual rights, and never to state's rights. For example, he began his speech
by explaining "I prefer to think of our Bill of Rights as including all
provisions of the original Constitution and Amendments that protect individual
liberty. . ." [FN198]
If Justice Black thought that the Second Amendment protected state power, rather
than individual liberty, he would not have included the Second Amendment in his
litany of "absolute" guarantees in the Bill of Rights. In the
discussion of Adamson v. California, infra, we will see "definite and
absolute" proof that Justice Black considered the Second Amendment an
individual right.

In the 1961 case Poe v. Ullman, the Court considered whether married persons had
a right to use contraceptives. [FN199]
The majority said "no," but the second Justice Harlan, in a dissent
(which gained ascendancy a few years later in Griswold v. Connecticut), wrote
that the FourteenthAmendment did guarantee a right of
privacy. In developing a theory of exactly what the Fourteenth Amendment due
process clause did protect, Justice Harlan wrote that the clause was not limited
exclusively to "the precise terms of the specific guarantees *149elsewhere provided in the Constitution," such as "the freedom of
speech, press, and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures." [FN200]

It is impossible to read Justice Harlan's words as anything other than a
recognition that the Second Amendment protects the right of individual Americans
to possess firearms. The due process clause of the Fourteenth Amendment,
obviously, protects a right of individuals against governments; it does not
protect governments, nor is it some kind of "collective" right. It is
also notable that Justice Harlan felt no need to defend or elaborate his
position that the Second Amendment guaranteed an individual right. Despite the
Henigan claim that the non-individual nature of the Second Amendment is
"well- settled," it was unremarkable to Justice Harlan that the Second
Amendment guaranteed the right of individual people to keep and bear arms.

Like the Brandeis and Holmes dissents in the early free speech cases, the Harlan
dissent in Poe today seems to be a correct statement of the law.

Some parts of the Harlan dissent, however, have not been quoted by future
courts. For example, even though later opinions have quoted approvingly the
Harlan language that the Fourteenth Amendment forbids "all substantial arbitrary
impositions," [FN201]
those quotations omit the list of cases that Justice Harlan cited for the
proposition. That list included Allgeyer v. Louisiana [FN202]
and Nebbia v. New York, [FN203]
both of which used the Fourteenth Amendment in defense of economic liberty. But
Justice Harlan was certainly right that modern use of the Fourteenth Amendment
to protect non- enumerated rights has its roots in the liberty of contract due
process cases from the turn of the century. Although it is not currently
respectable to say so in a Supreme Court opinion, cases such as Allgeyer and its
progeny have as much a logical claim to be part of the Fourteenth Amendment as
do Griswold [FN204]
and its progeny; both lines of cases protect personal freedom from
"substantial arbitrary impositions."

But the fact that Allgeyer and Nebbia end up trimmed in later quotations of
Justice Harlan's words shows that the Justices who used the quote later
(Stevens, O'Connor, Powell, and Stewart) were not just quoting without thought;
they knew how to excise parts of Harlan's language that they did not agree with,
such as the references to economic liberty. That economic liberty was excised,
while the Second Amendment stayed in, may, therefore, be plausibly considered as
the writer's decision.

*150Also unquoted by later Courts has been Justice Harlan's statement,
"Again and again this Court has resisted the notion that the Fourteenth
Amendment is no more than a shorthand reference to what is explicitly
set out elsewhere in the Bill of Rights." [FN205]
In support of this proposition, he cited, inter alia, Presser v. Illinois, a
nineteenth century case which will be discussed infra.

Interestingly, Justice Douglas wrote his own dissent, in which he stated that
the Fourteenth Amendment must protect "all" the Bill of Rights. [FN206]
This implies that the Second Amendment is an individual right, if it can be
protected by the Fourteenth Amendment. But Justice Douglas later rejected this
view, in his Adams v. Williams dissent. [FN207]

Knapp involved the applicability of the Fifth Amendment's self-incrimination
clause to the states. [FN208]
Justice Frankfurter's majority opinion refused to enforce the clause against the
states. In support of his position, the Justice reeled off a list of nineteenth
century cases, including Cruikshank (discussed infra) which he cited for the
proposition that it was well-settled almost all of the individual rights
guarantees in the Bill of Rights were not applicable to the states:

After the surrender of Germany during World War II, some German soldiers in
China aided the Japanese army, in the months that Japan continued to fight
alone. [FN210]
The American army captured them, and tried them by court-martial in China as war
criminals. [FN211]
The Germans argued that the trial violated their Fifth Amendment rights, and
pointed out that the Fifth Amendment is not by its terms limited to American
citizens. [FN212]

Justice Jackson's majority opinion held that Germans had no Fifth Amendment
rights. [FN213]
He pointed out that if Germans could invoke the Fifth Amendment, they could
invoke the rest of the Bill of Rights. [FN214]
This would lead to the absurd result of American soldiers, in obedience to the
Second Amendment, being forbidden to disarm the enemy:

If the Fifth Amendment confers its rights on all the world except Americans
engaged in defending it, [FN215]
the same must be true of the companion civil-rights Amendments, for none of them
is limited by its express terms, territorially or as to persons. Such a
construction would mean that during military occupation irreconcilable enemy
elements, guerrilla fighters, and "were-wolves" could require the
American Judiciary to assure them freedoms of speech, press, and assembly as in
the First Amendment, right to bear arms as in the Second, security against
"unreasonable" searches and seizures as in the *152Fourth, as well as rights to jury trial as in the Fifth and Sixth
Amendments. [FN216]
The "irreconcilable enemy elements, guerrilla fighters, and
'were-wolves" ' in Justice Jackson's hypothetical are obviously not
American state governments. Instead they are individuals and as individuals
would have Second Amendment rights, if the Second Amendment were to apply to
non-Americans. [FN217]
Interestingly, Justice Jackson's reasoning echoed an argument made in Ex Parte
Milligan by the Attorney General: the Fifth Amendment must contain implicit
exceptions, which allow trial of civilians under martial law; the whole Bill of
Rights contains implicit exceptions, for without such exceptions, it would be a
violation of the Second Amendment to disarm rebels, and the former slave states'
forbidding the slaves to own guns would likewise have been unconstitutional. [FN218]

In the Adamson case, the defendant was convicted after a trial in a California
state court; California law allowed the judge to instruct the jury that the jury
could draw adverse inferences from a defendant's failure to testify. [FN219]
This jury instruction was plainly inconsistent with established Fifth Amendment
doctrine; [FN220]
but did the Fifth Amendment apply in state courts, or only in federal courts?

The Adamson majority held that the Fifth Amendment's protection against
compelled self-incrimination was not made enforceable in state courts by the
Fourteenth Amendment's command that states not deprive a person of life,
liberty, or property without "due process of law." [FN221]

In dissent, Justice Black (joined by Justice Douglas) argued that the Fourteenth
Amendment made all of the Bill of Rights enforceable against the states, via the
Amendment's mandate: "No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States." [FN222]
Listing a series of 19th century cases in which the Supreme Court had refused to
make certain individual rights from the Bill of Rights enforceable against the
states (including Presser, involving the right to keep and bear arms), Justice
Black argued that the Court's prior cases had not been so explicit as to
foreclose the current Court from considering the issue:

Later, but prior to the Twining case, this Court decided that the following were
not "privileges or immunities" of national citizenship, so as to make
them immune against state invasion: the Eighth Amendment's prohibition against
cruel and unusual punishment, In
re Kemmler, 136 U.S. 436; the Seventh Amendment's guarantee of a jury trial
in civil cases, Walker
v. Sauvinet, 92 U.S. 90; the Second Amendment's 'right of the people to keep
and bear arms. . .,' Presser
v. Illinois, 116 U.S. 252, 584; the Fifth and Sixth Amendments' requirements
for indictment in capital or other infamous crimes, and for trial by jury in
criminal prosecutions, Maxwell
v. Dow, 176 U.S. 581. While it can be argued that these
cases implied that no one of the provisions of the Bill of Rights was made
applicable to the states as attributes of national citizenship, no one of them
expressly so decided. In fact, the Court in Maxwell
v. Dow, supra, 176 U.S. at pages 597, 598, 20 S.Ct. at page 455, concluded
no more than that 'the privileges and immunities of citizens of the United
States do not necessarily include all the rights protected by the first eight
amendments to *156the Federal Constitution against the powers of the Federal government.' Cf. Palko
v. Connecticut, 302 U.S. 319, 329, 153.[FN223]
Thus, Justice Black put the Second Amendment in the same boat as Amendments
Five, Six, Seven, and Eight: individual rights which prior Courts had declined
to enforce against the states, but which the present Court still had the choice
to incorporate.

In a lengthy Appendix, Justice Black set forth the history of the creation of
the Fourteenth Amendment, quoting at length from congressional proponents of the
Amendment, who indicated that the Amendment was intended to make all of the
rights in the first eight amendments of the Bill of Rights enforceable against
the states. [FN224]
This view, held by Justice Black and many of the backers of the Fourteenth
Amendment, is of course inconsistent with the idea that the Second Amendment
guarantees only a right of state governments. The point of the Fourteenth
Amendment is to make individual rights enforceable against state governments.

First,
the Appendix set forth the background to the Fourteenth Amendment. Congress had
enacted the Civil Rights Bill in response to problems in states such as
Mississippi, where, Senator Trumball (Chairman of the Senate Judiciary
Committee) explained, there was a statute to "prohibit any negro or mulatto
from having firearms. . ." [FN225]
When the Civil Rights Bill went to the House, Rep. Raymond, who opposed the Bill
"conceded that it would guarantee to the negro 'the right of free passage.
. .He has a defined status. . . .a right to defend himself. . .to bear arms. . .
.to testify in the Federal courts." [FN226]

Then,

On May 23, 1866, Senator Howard introduced the proposed amendment to the Senate
in the absence of Senator Fessenden who was sick. Senator Howard prefaced his
remarks by stating:

"I. . .present to the Senate. . .the views and the motives [of the
Reconstruction Committee]. . . .One result of their investigation has been the
joint resolution for the amendment of the Constitution of the United States now
under consideration. . . .

"The first section of the amendment. . .submitted for the consideration of
the two Houses, relates to the privileges and immunities of citizens of the
several States, and to the rights and privileges of all persons, whether
citizens or others, under the laws of the United States. . . .

. . .

*157"Such is the character of the privileges and immunities spoken of in
the second section of the fourth article of the Constitution. To these
privileges and immunities, whatever they may be--for they are not and cannot be
fully defined in their entire extent and precise nature--to these should be
added the personal rights guarantied and secured by the first eight amendments
of the Constitution; such as the freedom of speech and of the press; the right
of the people peaceably to assemble and petition the Government for a redress of
grievances, a right appertaining to each and all the people; the right to keep
and to bear arms; the right to be exempted from the quartering of soldiers in a
house without the consent of the owner; the right to be exempt from unreasonable
searches and seizures, and from any search or seizure except by virtue of a
warrant issued upon a formal oath or affidavit; the right of an accused person
to be informed of the nature of the accusation against him, and his right to be
tried by an impartial jury of the vicinage; and also the right to be secure
against excessive bail and against cruel and unusual punishments. [FN227]

Later in the Appendix, Justice Black quoted Rep. Dawes's statement that by the
Constitution the American citizen

"secured the free exercise of his religious belief, and freedom of speech
and of the press. Then again he had secured to him the right to keep and bear
arms in his defense. Then, after that, his home was secured
in time of peace from the presence of a soldier. . . ." [FN228]

. . . .

"It is all these, Mr. Speaker, which are comprehended in the words
'American citizen,' and it is to protect and to secure him in these rights,
privileges, and immunities this bill is before the House. And the question to be
settled is, whether by the Constitution, in which these provisions are inserted,
there is also power to guard, protect, and enforce these rights of the citizens;
whether they are more, indeed, than a mere declaration of rights, carrying with
it no power of enforcement. . . ." Cong. Globe, 42d Cong., 1st Sess. Part I
(1871) 475, 476. [FN229]

Also dissenting, Justice Murphy wrote "that the specific guarantees of the
Bill of Rights should be carried over intact into the first Section of the
Fourteenth Amendment." [FN230]
The Second Amendment implications of his statement are the same as for Justice
Black's longer exposition, although Justice Murphy did not enumerate the Second
Amendment, or any other right.

Senator Howard, quoted by Justice Black, listed the individual right to arms in
its natural order among the other individual rights listed in the Bill of Rights.
*158 FN231] The Henigan/Bogus state's right theory, however, requires us to believe
that when Congress sent the Bill of Rights to the states, Congress first listed
four individual rights (in the First Amendment), then
created a state's right (in the Second Amendment), and then reverted to a litany
of individual rights (Amendments Three through Eight). [FN232]
Finally, Congress explicitly guaranteed a state's right in the Tenth Amendment. [FN233]
While Congress used "the people" to refer to people in the First,
Fourth, and Ninth Amendments, Congress used "the people" to mean
"state governments" in the Second Amendment. [FN234]
Finally, even though Congress had used "the people" in the Second
Amendment to mean "the states," Congress in the Tenth Amendment
explicitly distinguished "the people" from "the states,"
reserving powers "to the States respectively, or to the people." [FN235]

Which reading is more sensible: The Black/Howard/Dawes reading, under which
"the people" means the same thing throughout the Bill of Rights, and
which makes all of the first eight amendments into a straightforward list of
individual rights, or the Henigan/Bogus theory, which requires that "the
people" change meanings repeatedly, and which inserts a state's right in
the middle of a litany of individual rights?

This case has been almost entirely overlooked by Second Amendment scholarship.[FN236]
Hamilton's obscurity is especially surprising, since it is the one Supreme Court
case which actually uses the Second Amendment in the way
that we would expect the Amendment to be used if it were a state's right: to
bolster state authority over the militia.

Two University of California students, the sons of pacifist ministers, sued to
obtain an exemption from participation in the University of California's
mandatory military training program. [FN237]
The two students did not contest the state of California's authority to force
them to participate in state militia exercises, but they argued, in part, that
the university's training program was so closely connected with the U.S. War
Department as to not really be a militia program. [FN238]
A unanimous Court disagreed, and stated that California's acceptance of federal
assistance in militia training did not transform the training *159program into an arm of the standing army. States had the authority to made
their own judgments about training:

So long as [the state's] action is within retained powers and not inconsistent
with any exertion of the authority of the national government, and transgresses
no right safeguarded to the citizen by the Federal Constitution, the State is
the sole judge of the means to be employed and the amount of training to be
exacted for the effective accomplishment of these ends. Second Amendment. Houston
v. Moore, 5 Wheat. 1, 16-17, Dunne
v. People, (1879) 94 Ill. 120, 129. 1 Kent's Commentaries 265, 389. Cf.
Presser
v. Illinois, 116 U.S. 252.[FN239]

Thus,
the Court used the Second Amendment to support of a point about a state
government's power over its militia.

This usage was not consistent with a meaningful state's right theory. A state's
right Second Amendment, to have any legal content, would have to give the state
some exemption from the exercise of federal powers. [FN240]
But the Court wrote that the state's discretion in militia training must be
"not inconsistent with any exertion of the authority of the national
government." [FN241]

Another way to read Hamilton's Second Amendment citation would be as a reminder
of the expectation by all the Founders that states would supervise the militia.
This reminder would be consistent with the state's rights theory and with the
standard model.

The authorities cited along with "Second Amendment" by the Hamilton
Court do not support a reading of the Second Amendment as guaranteeing a state's
right, but instead support an individual right.

Houston v. Moore (to be discussed in more detail below), involved the state of
Pennsylvania's authority to punish a man for evading service in the federal
militia, which had been called to fight the war of 1812. [FN242]
The report of the attorneys' arguments, on both sides, shows that the Second
Amendment was not raised as an issue. [FN243]
The Houston pages which were cited by the Hamilton Court contain the statement,
spanning the two pages, that "[A]s state militia, the
power of the state governments to legislate on the same subjects [organizing,
arming, disciplining, training, and officering the militia], having existed
prior to the formation of the constitution, and not having been prohibited by
that instrument, it remains with the states, subordinate nevertheless to the
paramount law of the general government, operating on the same subject." [FN244]
In other words, state militia powers were inherent in the *160nature of state sovereignty, and continue to exist except to the extent
limited by Congress under its Constitutional militia powers.

In Dunne v. People, the Illinois Supreme Court affirmed the centrality of state
power over the militia, citing the Tenth Amendment and the Houston v. Moore
precedent. [FN245]
The Dunne court also explained how a state's constitutional duty to operate a
militia was complemented by the right of the state's citizens to have arms:

"A well regulated militia being necessary to the security of a free
State," the States, by an amendment to the constitution, have imposed a
restriction that Congress shall not infringe the right of the "people to
keep and bear arms." The chief executive officer of the State is given
power by the constitution to call out the militia "to execute the laws,
suppress insurrection and repel invasion." [FN246]
This would be a mere barren grant of power unless the State had power to
organize its own militia for its own purposes.
Unorganized, the militia would be of no practical aid to the executive in
maintaining order and in protecting life and property within the limits of the
State. These are duties that devolve on the State, and unless these rights are
secured to the citizen, of what worth is the State government? [FN247]

The cited pages of Kent's Commentaries discuss state versus federal powers over
the militia. Chancellor Kent uses Martin v. Mott [FN248]
to show that a President's decision that there is a need to call out the militia
is final. Houston v. Moore [FN249]
(state authority to prosecute a person for refusing a federal militia call) is
used to show that if the federal government neglects its constitutional duty to
organize, arm, and discipline the militia, the states have the inherent
authority to do so. The Second Amendment was not used by Kent or by Kent's cited
cases to support his propositions.

Presser v. Illinois will be discussed below; the case affirmed a state's
authority to make a gun control law (a ban on armed parades in public) which
contained an exemption for the state's organized militia. [FN250]

Later in the opinion, the Hamilton Court quoted United States v. Schwimmer, a
1929 decision which held that an immigrant pacifist's refusal to bear arms in
the army or in the Second Amendment's well-regulated militia proved that the
immigrant was not fit for citizenship. [FN251]
*161

IV. The Taft, Fuller, and Waite Courts

Between the end of
Reconstruction and the New Deal, there were eleven opinions (all but one a
majority opinion) touching on the Second Amendment. Most involved the scope of
the "privileges and immunities" which the Fourteenth Amendment
protected from state interference. Nine of the opinions (including the one
dissent) treated the Second Amendment as an individual right, while the tenth
was ambiguous, and the eleventh refused to address any of a plaintiff's
arguments (of which the Second Amendment was one) because of a lack of injury
and hence a lack of standing.

A divided Supreme Court held that a female pacifist who wished to become a
United States citizen could be denied citizenship because of her energetic
advocacy of pacifism. [FN252]
The Court majority found the promotion of pacifism inconsistent with good
citizenship because it dissuaded people from performing their civic duties,
including the duty to bear arms in a well regulated militia. [FN253]
Since it is agreed by Standard Modelers and their critics alike that the federal
and state governments have the authority to compel citizens to perform militia
service, the Schwimmer opinion does not help resolve the individual rights
controversy:

That it is the duty of citizens by force of arms to defend our government against
all enemies whenever necessity arises is a fundamental principle of the
Constitution.

The common defense was one of the purposes for which the people ordained and
established the Constitution. It empowers Congress to provide for such defense,
to declare war, to raise and support armies, to maintain a navy, to make rules
for the government and regulation of the land and naval forces, to provide for
organizing, arming, and disciplining the militia, and for calling it forth to
execute the laws of the Union, suppress insurrections and repel invasions; it
makes the President commander in chief of the army and navy and of the militia
of the several states when called into the service of the United States; it
declares that, a well-regulated militia being necessary to the security of a
free state, the right of the people to keep and bear arms shall not be
infringed. We need not refer to the numerous statutes that contemplate defense
of the United States, its Constitution and laws, by armed citizens. This court,
in the Selective
Draft Law Cases, 245 U.S. 366, page 378, 38 S. Ct. 159, 161 (62 L. Ed. 349, L.
R. A. 1918C, 361, Ann. Cas. 1918B, 856), speaking through Chief Justice
White, said that "the very conception of a just government and its duty to
the citizen includes the reciprocal obligation of the citizen to render military
service in case of need. . . ."

*162Whatever tends to lessen the willingness of citizens to discharge their duty
to bear arms in the country's defense detracts from the strength and safety
of the Government. . . .The influence of conscientious objectors against the use
of military force in defense of the principles of our Government is apt to be
more detrimental than their mere refusal to bear arms. . .her objection to
military service rests on reasons other than mere inability because of her sex
and age personally to bear arms. [FN254]

Schwimmer illustrates two points about which the Standard Model authors agree
with Bogus and Henigan: first, the phrase "bear arms" in the Second
Amendment can have militia service connotations. The Standard Modelers (and
Justice Ginsburg) [FN255],
however, disagree with Bogus and Henigan's claim that "bear arms"
always has a militia/military meaning, and never any other. Second, Schwimmer
illustrates that bearing arms can be a duty of citizenship which the government
can impose on the citizen. While opponents of the standard model use this fact
to argue that the Second Amendment is about a duty, and not about an individual
right, [FN256]
the Standard Model professors respond by pointing to jury service, to show that
an individual constitutional right (the right to be eligible for jury service [FN257])
can also be a duty.

This case came to the Court after World War I had broken out in Europe.
[FN258]
The U.S. War Department had sent "Circular 8" to the various National
Guards, putting restrictions on promotion. Plaintiff Stearns, a Major in
the Ohio National Guard, was thereby deprived of any opportunity to win
promotion above the rank of Lieutenant Colonel. [FN259]
Stearns argued that Circular 8 violated the Preamble to the Constitution,
Article One's specification of Congressional powers over the militia, Article
One's grant of army powers to the Congress, Article Two's making the President
the Commander in Chief of the militia when called into federal service, the
Second Amendment, and the Tenth Amendment. [FN260]

Writing for a unanimous Court, Justice McReynolds contemptuously dismissed
Stearns' claim without reaching the merits. [FN261]
Since Stearns' present rank *163of Major was undisturbed, there was no genuine controversy for the Court to
consider, and the Court would not render advisory opinions. [FN262]

Even though the Court never reached the merits of the Second Amendment argument,
it is possible to draw some inferences simply from the fact that the Second
Amendment argument was made in the case. First of all, Major Stearns' argument
shows that using the Second Amendment to criticize federal control of the
National Guard was not an absurd argument--or at least no more absurd than using
the Preamble to the Constitution for the same purpose. And after the 1905 Kansas
Supreme Court case Salina v. Blaksley ruled that the Kansas constitution's right
to arms (and, by analogy, the U.S. Second Amendment) protected the state
government, and not the citizen of Kansas, [FN263]
Stearns'
attorney's argument did have some foundation in case law.

In Twining, the Supreme Court (with the first Harlan in dissent) refused to make
the Fifth Amendment self-incrimination guarantee in the Bill of Rights
applicable to state trials, via the Fourteenth Amendment. [FN264]
In support of this result, the majority listed other individual rights which had
not been made enforceable against the states, under the Privileges and
Immunities clause:

The right to trial by jury in civil cases, guaranteed by the Seventh Amendment (Walker
v. Sauvinet, 92 U.S. 90), and the right to bear arms guaranteed by the
Second Amendment (Presser
v. Illinois, 116 U.S. 252) have been distinctly held not to be privileges
and immunities of citizens of the United States guaranteed by the Fourteenth
Amendment against abridgement by the States, and in effect the same decision was
made in respect of the guarantee against prosecution, except by indictment of a
grand jury, contained in the Fifth Amendment (Hurtado
v. California, 110 U.S. 516), and in respect to the right to be confronted
with witnesses, contained in the Sixth Amendment. West
v. Louisiana, 194 U.S. 258. In Maxwell v. Dow, supra. . .it was held that
indictment, made indispensable by the Fifth Amendment, and the trial by jury
guaranteed by the Sixth Amendment, were not privileges and immunities of citizens
of the United States. [FN265]

The Second Amendment here appears--along with Seventh Amendment civil juries,
Sixth Amendment confrontation, and Fifth Amendment grand juries--as a right of
individuals, but a right only enforceable against the federal government. As we
shall see below, the exact meaning of the 1886 Presser case was subject to
dispute; some argued that the case simply upheld a particular gun control as not
being in violation of the Second Amendment,*164while others argued that Presser held that the Second Amendment was not one
of the "Privileges and Immunities" which the Fourteenth Amendment
protects against state action. Twining clearly takes the latter view.

Maxwell was the majority's decision (again, over Harlan's dissent) not to make
the right to a jury in a criminal case into one of the Privileges or Immunities
protected by the Fourteenth Amendment. [FN266]
Regarding the Second Amendment and Presser, the Court wrote:

In Presser
v. Illinois, 116 U.S. 252, it was held that the Second Amendment to the
Constitution, in regard to the right of the people to bear arms, is a limitation
only on the power of the Congress and the National Government, and not of the
States. It was therein said, however, that as all citizens capable of bearing
arms constitute the reserved military force of the National
Government, the States could not prohibit the people from keeping and bearing
arms, so as to deprive the United States of their rightful resource for
maintaining the public security, and disable the people from performing their
duty to the General Government. [FN267]

The Maxwell description of Presser was somewhat narrower than Twining's
description. Maxwell used Presser only to show that the Second Amendment does
not in itself apply to the states; Twining used Presser to show that the
Fourteenth Amendment privileges and immunities clause did not make the Second
Amendment indirectly applicable to the states.

After the United States won the Spanish-American War, the Philippines were ceded
to the United States. American control was successfully imposed only after
several years of hard warfare suppressed Filipinos fighting for independence. [FN268]
Congress in 1902 enacted legislation imposing most, but not all of the Bill of
Rights on the Territorial Government of the Philippines. The 1905 Trono [FN269]
case and the 1904 Kepner [FN270]
case both grew out of criminal prosecutions in the Philippines in which the
defendant claimed his rights had been violated.

In Trono, at the beginning of the Justice Peckham's majority opinion, the
Congressional act imposing the Bill of Rights was summarized:

*165

The whole language [of the Act] is substantially taken from the Bill of
Rights set forth in the amendments to the Constitution of the United States,
omitting the provisions in regard to the right of trial by jury and the right of
the people to bear arms, and containing the prohibition of the 13th Amendment,
and also prohibiting the passage of bills of attainder and ex post facto laws.
[FN271]

As with other cases, the "right of the people" to arms is listed in a
litany of other rights which are universally acknowledged to be individual
rights, not state's rights. [FN272]

It could be argued that the Second Amendment was omitted from the Congressional
Act because the Amendment is a state's right, and there was no point in putting
a state's right item into laws governing a territory. Indeed, the omission of
the Tenth Amendment from the Congressional 1902 Act is perfectly explicable on
the grounds that the Tenth Amendment protects federalism, but does not control a
territorial or state government's dealings with its citizens. [FN273]

And thus, when the Supreme Court listed the individual rights which were not
included in the 1902 Act, the Court did not note the omission of the Tenth
Amendment; there was no possibility that Congress could have included the Tenth
Amendment, since it would have no application to the territorial government's
actions against the Filipino people. [FN274]

In contrast, the Court did note the omission of "the
right of trial by jury and the right of the people to bear arms." [FN275]
The logical implication, then, is that jury trial and the right to arms (unlike
the Tenth Amendment) are individual rights which Congress could have required
the Territorial Government to respect in the Philippines. [FN276]

The 1904 United States v. Kepner case involved a similar issue.
[FN277]
There, the Court described the 1902 Act in more detail. The description of items
omitted from the Act was nearly identical to the Trono language. [FN278]

In 1897, the Court refused to apply the Thirteenth Amendment to merchant seamen
who had jumped ship, been caught, and been impressed back into maritime service
without due process. [FN279]
The Court explained that Thirteenth Amendment's ban on involuntary servitude,
even though absolute on its face, contained various implicit exceptions. [FN280]
In support of the finding of an exception to the Thirteenth Amendment, the Court
argued that the Bill of Rights also contained unstated exceptions:

The law is perfectly well settled that the first ten Amendments to the
constitution, commonly known as the Bill of Rights, were not intended to lay
down any novel principles of government, but simply to embody certain guarantees
and immunities which we had inherited from our English ancestors, and which from
time immemorial had been subject to certain well-recognized exceptions arising
from the necessities of the case. In incorporating these principles into the
fundamental law, there was no intention of disregarding the exceptions, which
continued to be recognized as if they had been formally expressed. Thus, the
freedom of speech and of the press (article 1) does not permit the publication
of libels, blasphemous or indecent articles, or other publications injurious to
public morals or private reputation; the right of the people to keep and bear
arms (article 2) is not infringed by law prohibiting the carrying of concealed
weapons; the provision that no person shall be twice put in jeopardy (art. 5)
does not prevent a second trial, if upon the first trial the jury failed to
agree, or the verdict was set aside upon the defendant's motion. . . . [FN281]
Likewise, the self-incrimination clause did not bar a person from being
compelled to testify against himself if he were immune from prosecution; and the
confrontation clause did not bar the admission of dying declarations. [FN282]

In 1897, state laws which barred individuals from carrying concealed weapons
were common, and usually upheld by state supreme courts [FN283];
the laws did not forbid state militias from carrying concealed weapons. The
prohibitions on concealed carry are the exceptions that prove the rule. Only if
the Second Amendment is an individual right does the Court's invocation of a concealed
carry exception make any sense.

When a witness before an Interstate Commerce Commission investigation invoked
the Fifth Amendment to refuse to answer questions under oath, the majority of
the Supreme Court ruled against his invocation of the privilege against self-
incrimination. [FN284]
The majority pointed out that a Congressional statute protected the witness from
any criminal prosecution growing out of the testimony. [FN285]

Dissenting, Justice Stephen Field (perhaps the strongest civil liberties
advocate on the Court during the nineteenth century) contended that the
"infamy and disgrace" which might result from the testimony was
justification enough not to testify, even if there could be no criminal
prosecution. [FN286]
Justice Field's opinion carefully analyzed English and early American precedent,
reflecting Field's vivid appreciation of the long Anglo-American struggle for
liberty against arbitrary government. [FN287]
Law and order was less important than Constitutional law, he continued, for the
claim that "the proof of offenses like those prescribed by the interstate
commerce act will be difficult and probably impossible, ought not to have a
feather's weight against the abuses which would follow necessarily the
enforcement of incriminating testimony." [FN288]
All Constitutional rights ought to be liberally construed,
for:

As said by counsel for the appellant: "The freedom of thought, of speech,
and of the press; the right to bear arms; exemption from military dictation;
security of the person and of the home; the right to speedy and public trial by
jury; protection against oppressive bail and cruel punishment,--are, together
with exemption from self-crimination, the essential and inseparable features of
English liberty. Each one of these features had been involved in the struggle
above referred to in England within the century and a half immediately preceding
the adoption of the constitution, and the contests were fresh in the memories
and traditions of the people at that time." [FN289]

This is just the opposite of Dennis Henigan's assertion that the Second
Amendment is written so as to be less fundamental than the first. {FN290]
Justice Field's paragraph is not a list of state powers, it is a list of
personal rights won at *168great cost--rights which may never be trumped by the legislature's perceived
needs of the moment.

Miller v. Texas

Franklin P. Miller was a white man in Dallas who fell in love with a woman whom
local newspapers would later call "a greasy negress." In response to a
rumor that Miller was carrying a handgun without a license, a gang of Dallas
police officers, after some hard drinking at a local tavern, invaded Miller's store
with guns drawn. A shoot-out ensued, and the evidence was conflicting as to who
fired first, and whether Miller realized that the invaders were police officers.
But Miller was stone cold sober, and the police gang was not; thus, Miller
killed one of the intruders during the shoot-out, although the gang's superior
numbers resulted in Miller's capture.

During Miller's murder trial, the prosecutor asserted to the jury that Miller
had been carrying a gun illegally. Upon conviction of murdering the police
officer, Miller appealed to various courts, and lost every time.

Appealing to the Supreme Court in 1894, Miller alleged violations of his Second
Amendment, Fourth Amendment, Fifth Amendment, and Fourteenth Amendment rights. [FN291]
Regarding the Second Amendment, Miller claimed that it negated the Texas statute
against concealed carrying of a weapon. [FN292]

A unanimous Court rejected Miller's contentions: A "state law forbidding
the carrying of dangerous weapons on the person. . . does not abridge the
privileges or immunities of citizens of the United States." [FN293]
This statement about concealed weapons laws was consistent with what the Court
would say about such laws three years later, in the Robertson case. [FN294]

Moreover, the Second Amendment, like the rest of the Bill of Rights, only
operated directly on the federal government, and not on the states: "the
restrictions of these amendments [Second, Fourth, and Fifth] operate only upon
the Federal power." [FN295]

But did the Fourteenth Amendment makes the Second, Fourth,
and Fifth Amendments applicable to the states? Here, the Miller Court was
agnostic: "If the Fourteenth Amendment limited the power of the States as
to such rights, as pertaining to the citizens of the United States, we think it
was fatal to this claim that it was not set up in the trial court." [FN296]

Just eight years before, in Presser the Court had said that the Second Amendment
does not apply directly to the states; Miller reaffirmed this part of *169Presser. Another part of Presser had implied that the right to arms was not
one of the "privileges or immunities" of American citizenship,
although the Presser Court did not explicitly mention the Fourteenth Amendment.

In Miller v. Texas, the Court suggested that Miller might have had a Fourteenth
Amendment argument, if he had raised the issue properly at trial. [FN297]
If Presser foreclosed any possibility that Second Amendment rights could be
enforced via the Fourteenth Amendment, then the Miller Court's statement would
make no sense. Was Miller an early hint that the Fourteenth Amendment's due
process clause might protect substantive elements of the Bill of Rights? Three
years later, the Court used the Fourteenth Amendment's due process clause for
the first time to apply part of the Bill of Rights against a state. [FN298]

A decade after Miller, Twining in 1908 did claim that Presser stood for the
Second Amendment not being a Fourteenth Amendment privilege or immunity.
But between Presser in 1886 and Twining in 1908, other readings were
permissible. Not only does Miller in 1894 appear to invite such readings, but so
does the 1887 case Spies v. Illinois, which involved the murder prosecutions
arising out of the Haymarket Riot. [FN299]
John Randolph Tucker represented the defendants. Tucker, an eminent Congressman,
author of an important treatise on constitutional law, a future President of the
American Bar Association, and a leading law professor at Washington and Lee [FN300]--
argued that the whole Bill of Rights was enforceable against the states,
including the right to arms. [FN301]

*170Tucker argued that all "these ten Amendments" were
"privileges and immunities of citizens of the United States, which the
Fourteenth Amendment forbids every State to abridge," and cited Cruikshank
in support. [FN302]
As for Presser, that case "did not decide that the right to keep and bear
arms was not a privilege of a citizen of the United States which a State might
therefore abridge, but that a State could under its police power forbid
organizations of armed men, dangerous to the public peace." [FN303]

Chief Justice Waite's majority opinion in Spies cited Cruikshank and Presser
(along with many other cases) only for the proposition that the first ten
Amendments do not apply directly to the states. FN304]
(An 1890 opinion, Eilenbecker, again cited Cruikshank and Presser as holding
that the Bill of Rights does not apply directly to the states. [FN305])
The Spies' defendants' substantive claims (relating to the
criminal procedure and jury portions of the Bill of Rights) were rejected as
either incorrect (e.g., the jury was not biased) or as not properly raised at
trial, and thus not appropriate for appeal. [FN306]

Tucker's reading of Presser is not the only possible one, but Tucker--one of the
most distinguished lawyers of his time--was far too competent to make an
argument in a capital case before the Supreme Court that was contrary to Supreme
Court precedent from only a year before. It may be permissible to read Presser
the same way that John Randolph Tucker did (as upholding a particular gun
control law), or as Spies, Maxwell, and Eilenbecker did (as stating*171that the Second Amendment does not by its own power apply to the states), or
as Twining and Malloy v. Hogan did (as rejecting incorporation of the Second
Amendment via the Privileges and Immunities clause). We will get to Presser
soon, so that the reader can supply her own interpretations.[FN307]

Whatever Miller v. Texas implies about the Fourteenth Amendment, its Second
Amendment lessons are easy. First, the Amendment does not directly limit the
states. Second, the Amendment protects an individual right. Miller was a private
citizen, and never claimed any right as a member of the Texas Militia. But
according to the Court, Miller's problem was the Second Amendment was raised
against the wrong government (Texas, rather than the federal government), and at
the wrong time (on appeal, rather than at trial). If the Henigan/Bogus
state's right theory were correct, then the Court should have rejected Miller's
Second Amendment claim because Miller was an individual rather than the
government of Texas. Instead, the Court treated the Second Amendment exactly
like the Fourth and the Fifth, which were also at issue: all three amendments
protected individual rights, but only against the federal government; while the
Fourteenth Amendment might, arguably, make these rights enforceable against the
states, Miller's failure to raise the issue at trial precluded further inquiry.

This case arose out of a prosecution under the Enforcement Act, a Congressional
statute outlawing private conspiracies against the exercise of civil rights. [FN308]
The Enforcement Act was also as issue in Cruikshank, infra. In Logan, a mob had
kidnapped a group of prisoners who were being held in the custody of federal law
enforcement. [FN309]
The issue before the Court was whether the prisoners, by action of the mob, had
been deprived of any of their federal civil rights.

Logan affirmed Cruikshank's position that the First and Second Amendments
recognize preexisting fundamental human rights, rather than creating new rights.
The First Amendment right of assembly and the Second Amendment*172right to arms are construed in pari materia, suggesting that they both
protect individual
rights:

U.S. v. Cruikshank, 92 U.S. 542, as the same term, in which also the opinion
was delivered by the chief justice, the indictment was on section 6 of the
enforcement act of 1870, (re-enacted in Rev. St. 5508, under which the present
conviction was had,) and the points adjudged on the construction of the
constitution and the extent of the powers of congress were as follows:

(1) It was held that the first amendment of the constitution, by which it was
ordained that congress should make no law abridging the right of the people
peaceably to assemble and to petition the government for redress of grievances,
did not grant to the people the right peaceably to assemble for lawful purposes,
but recognized that right as already existing, and did not guaranty its
continuance except as against acts of congress; and therefore the general right
was not a right secured by the constitution of the United States. But the court
added: "The right of the people peaceably to assemble for the purpose of
petitioning congress for a redress of grievances, or for anything else connected
with the powers or the duties of the national government, is an attribute of
national citizenship, and, as such, under the protection of, and guarantied by,
the United States. The very idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for consultation in respect
to public affairs, and to petition for a redress of grievances. If it had been
alleged in these counts that the object of the defendants
was to prevent a meeting for such a purpose, the cause would have been within
the statute, and within the scope of the sovereignty of the United States."
92
U.S. 552, 553.

(2) It was held that the second amendment of the constitution, declaring that
"the right of the people to keep and bear arms shall not be
infringed," was equally limited in its scope. 92
U.S. 553.

(3) It was held that a conspiracy of individuals to injure, oppress, and
intimidate citizens of the United States, with intent to deprive them of life
and liberty without due process of law, did not come within the statute, nor
under the power of congress, because the rights of life and liberty were not
granted by the constitution, but were natural and inalienable rights of man; and
that the fourteenth amendment of the constitution, declaring that no state shall
deprive any person of life, liberty, or property, without due process of law,
added nothing to the rights of one citizen as against another, but simply
furnished an additional guaranty against any encroachment by the states upon the
fundamental rights which belong to every citizen as a member of society. It was
of these fundamental rights of life and liberty, not created by or dependent on
the constitution, that the court said: "Sovereignty, for this purpose,
rests alone with the states. It is no more the duty or within the power of the
United States to punish for a conspiracy to falsely imprison or murder within a
state than it would be to punish for false imprisonment or
murder
itself." 92
U.S. 553, 554.

*1734th. It was held that the provision of the Fourteenth Amendment forbidding
any State to deny to any person within its jurisdiction the equal protection of
the laws, gave no greater power to Congress. 92
U.S. 555.

5th. It was held, in accordance with United States v. Reese, above cited, that
the counts for conspiracy to prevent and hinder citizens of the African race in
the free exercise and enjoyment of the right to vote at state elections, or to
injure and oppress them for having voted at such election, not alleging that
this was on account of their race, or color, or previous condition of servitude,
could not be maintained; that court stating: "The right to vote in the
States comes from the States; but the right of exemption from prohibited
discrimination comes from the United States. The first has not been granted or
secured by the Constitution of the United States, but the last has been." 92
U.S. 556

Nothing else was decided in United States v. Cruikshank, except questions of the
technical sufficiency of the indictment, having no bearing upon the larger
questions.
[FN310]

Thus, to the Logan Court, the First Amendment right to assemble and the Second
Amendment right to arms are identical: both are individual rights; both
pre-exist the Constitution; both are protected by the Constitution, rather than
created by the Constitution; both rights are protected only against governmentinterference,
not against the interference of private conspirators.

In the late 19th century, many state governments violently suppressed peaceful
attempts by workingmen to exercise their economic and collective bargaining
rights. In response to the violent state action, some workers created
self-defense organizations. In response to the self-defense organizations, some
state governments, such as Illinois's, enacted laws against armed public
parades.
[FN311]

Defying the Illinois Statue, a self-defense organization composed of German
working-class immigrants defied the law, and held a parade in which one of the
leaders carried an unloaded rifle. At trial, the leader--Herman Presser--argued
that the Illinois law violated the Second Amendment.

The Supreme Court ruled against him unanimously. First, the Court held that the
Illinois ban on armed parades "does not infringe the right of the people to
keep and bear arms."
[FN312]
This holding was consistent with traditional common
*174law boundaries on the right to arms, which prohibited terrifyingly large
assemblies of armed men.
[FN313]

Further, the Second Amendment by its own force "is a limitation only upon
the power of Congress and the National Government, and not upon that of the
States."
[FN314]

Did
some other part of the Constitution make the Second Amendment enforceable
against the states? The Court added that the Illinois law did not appear to
interfere with any of the "privileges or immunities" of citizens of
the United States.
[FN315]
Although the Court never actually used the words "Fourteenth
Amendment," it is reasonable to read Presser as holding that the Fourteenth
Amendment's Privileges and Immunities clause does not restrict state
interference with keeping and bearing arms. This reading is consistent with all
the other Fourteenth Amendment cases from the Supreme Court in the 1870s and
1880s, which consistently reject the proposition that any part of the Bill of
Rights is among the "Privileges and Immunities" protected by the
Fourteenth Amendment.
[FN316]

As to whether the Second Amendment might be protected by another part of the
Fourteenth Amendment--the clause forbidding states to deprive a person of life,
liberty, or property without due process of law
[FN317]--the
Court had nothing to say. The theory that the Due Process clause of the
Fourteenth Amendment might protect substantive constitutional rights had not yet
been invented. Most of what the Waite Court had to say about Bill of Rights
incorporation has long since been repudiated (although not always formally
overruled) by subsequent courts, via the Due Process clause.

It is true that some modern lower courts cling to Presser and claim that Presser
prevents them from addressing a litigant's claim that a state statute violates
the Second Amendment.
[FN318]
It is hard to take such judicial arguments seriously. An 1886 decision about
Privileges and Immunities is hardly binding precedent for 1990s Due Process. The
dicta from the modern Supreme Court about the Second Amendment as a possible
Fourteenth Amendment liberty interest is incompatible with the claim that
Presser forecloses any possible theory of incorporating the Second Amendment. At
most, Presser rejects Privileges and Immunities incorporation, but the case
cannot be read to address a legal theory (Due Process incorporation) which did
not exist at the time the case was decided.

*175Interestingly, Presser does offer another theory on which the United States
Constitution might restrict state anti-gun laws. Article I, section 8, clauses
15 and 16 give Congress various powers over the militia.
[FN319]
States may not interfere with these Congressional militia powers; so in dicta,
the Presser Court stated that the states could not disarm the public so as to
deprive the federal government of its militia:

It is undoubtedly true that all citizens capable of bearing arms constitute the
reserved military force or reserve militia of the United States, and, in view of
this prerogative of the general government. . .the States cannot, even laying
the Constitutional provision in question [the Second Amendment] out of view,
prohibit the people from keeping and bearing arms, so as to deprive the United
States of their rightful resource for maintaining the public security, and
disable the people from performing their duty to the general government. But, as
already stated, we think it clear that the sections under consideration do not
have this effect.
[FN320]
So according to Presser, the constitutional militia includes "all citizens
capable of bearing arms."
[FN321]
But this statement is not directly about the Second Amendment; it is about
Congressional powers to use the militia under Article I, section 8, clauses 15
and 16.

V. The Chase, Taney, and Marshall Courts

The majority of the
Chase Court was just as hostile to a broad reading of the Fourteenth Amendment
as was the Waite Court; unsurprisingly, the Chase Court rejected the idea that
Congress could use the Fourteenth Amendment to legislate against private
interference with First or Second Amendment rights. At the same time, the Chase
Court described the First Amendment assembly right and the Second Amendment arms
rights as fundamental human rights which pre-existed the Constitution.

One of the most notable cases of the nineteenth century, Dred Scott, used
the Second Amendment to support arguments about other subjects; the arguments
recognized the Second Amendment right as an individual one.

And the very first Supreme Court opinion to mention the Second Amendment--
Justice Story's dissent in Houston v. Moore--is so obscure that even most Second
Amendment specialists are unfamiliar with it. It is analogous to the Hamilton
case, in that it uses the Second Amendment to underscore state militia powers.

An important part of Congress's work during Reconstruction was the Enforcement
Acts, which criminalized private conspiracies to violate civil rights.
[FN322]
Among the civil rights violations which especially concerned Congress was the
disarmament of Freedmen by the Ku Klux Klan and similar gangs.
[FN323]

After a rioting band of whites burned down a Louisiana courthouse which was
occupied by group of armed blacks (following the disputed 1872 elections), the
whites and their leader, Klansman William Cruikshank, were prosecuted under the
Enforcement Acts. Cruikshank was convicted of conspiring to deprive the blacks
of the rights they had been granted by the Constitution, including the right
peaceably to assemble and the right to bear arms.
[FN324]

In United States v. Cruikshank, the Supreme Court held the Enforcement Acts
unconstitutional. The Fourteenth Amendment did give Congress the power to
prevent interference with rights granted by the Constitution, said the Court.
But the right to assemble and the right to arms were not rights granted or
created by the Constitution, because they were fundamental human rights that
pre-existed the Constitution:

The right of the people peaceably to assemble for lawful
purposes existed long before the adoption of the Constitution of the United
States. In fact, it is, and always has been, one of the attributes of
citizenship under a free government. It "derives its source," to use
the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211,
"from those laws whose authority is acknowledged
*177by civilized man throughout the world." It is found wherever
civilization exists. It was not, therefore, a right granted to the people by the
Constitution. The government of the United States when established found it in
existence, with the obligation on the part of the States to afford it
protection.
[FN325]

A few pages later, the Court made the same point about the right to arms as a
fundamental human right:

The right. . . of bearing arms for a lawful purpose. . . is not a right granted
by the Constitution. Neither is it in any manner dependent on that instrument
for its existence. The second amendment declares that it shall not be infringed;
but this. . . means no more than it shall not be infringed by Congress. . .
leaving the people to look for their protection against any violation by their
fellow citizens of the rights it recognizes, to what is called . . .the
"powers which relate to merely municipal legislation. . . ."
[FN326]

According to Cruikshank, the individual's right to arms is protected by the
Second
Amendment, but not created by it, because the right derives from natural law.
The Court's statement that the freedmen must "look for their protection
against any violation by their fellow citizens of the rights" that the
Second Amendment recognizes is comprehensible only under the individual rights
view. If individuals have a right to own a gun, then individuals can ask local
governments to protect them against "fellow citizens" who attempt to
disarm them. In contrast, if the Second Amendment right belongs to the state
governments as protection against federal interference, then mere "fellow
citizens" could not infringe that right by disarming mere individuals.

Cruikshank has occasionally been cited (without explanation) for the proposition
that the Second Amendment right belongs only to the state militias, although
Cruikshank has nothing to say about states or militias.
[FN327]

Cruikshank was also cited in dicta in later cases as supporting the theory that
the Second Amendment and the rest of Bill of Rights are not enforceable against
the states
[FN328]
(even though the facts of Cruikshank involve private actors,
*178not state actors). That theory, obviously, has long since been abandoned by
the Supreme Court. Among the earlier cases to reject non-incorporation was
DeJonge v. Oregon, holding that the right peaceably to assemble (one of the two
rights at issue in Cruikshank) was guaranteed by the 14th Amendment.
[FN329]
And as discussed above, Cruikshank's dicta about the Fourteenth Amendment
"Privileges and Immunities" is no more binding on modern
courts than is Presser's statement on the same subject several years later.

Holding that a free black could not be an American citizen,
[FN330]
the Dred Scott majority opinion listed the unacceptable consequences of
black citizenship: *179Black citizens would have the right to enter any state, to stay there as
long as they pleased, and within that state they could go where they wanted at
any hour of the day or night, unless they committed some act for which a white
person could be punished.
[FN331]
Further, black citizens would have "the right to. . .full liberty of speech
in public and private upon all subjects which [a state's] own citizens might
meet; to hold public meetings upon political affairs, and to keep and carry arms
wherever they went."
[FN332]

Thus, Chief Justice Taney claimed that the "right to. . .keep and carry
arms" (like "the right to. . .full liberty of speech," and like
the right to interstate travel without molestation, and like the "the right
to. . .hold public meetings on political affairs") was a right of American
citizenship. The only logical source of these rights is the United States
Constitution. While the right to travel is not textually stated in the
Constitution, it has been found there by implication.
[FN333]
As for the rest of the rights mentioned by
the Taney majority, they appear to be rephrasings of explicit rights contained
in the Bill of Rights. Instead of "freedom of speech," Justice Taney
discussed "liberty of speech"; instead of the right "peaceably to
assemble", he discussed the right "to hold meetings", and instead
of the right to "keep and bear arms," he discussed the right to
"keep and carry arms."
[FN334]

Although resolution of the citizenship issue was sufficient to end the Dred
Scott case, the Taney majority decided to address what it considered to be an
error in the opinion of the circuit court. Much more than the citizenship
holding, the part of Dred Scott that created a firestorm of opposition among the
northern white population was Dred Scott's conclusion that Congress had no power
to outlaw slavery in a territory, as Congress had done in the 1820 Missouri
Compromise, for the future Territory of Nebraska. [FN335]
Chief Justice Taney's treatment of the question began with the universal
assumption that the Bill of Rights constrained Congressional legislation in the
territories.

No one, we presume, will contend that Congress can make any law in a territory
respecting the establishment of religion, or the free exercise thereof, or
abridging the freedom of speech or of the press, or the right of the people of
the territory peaceably to assemble and to petition the government for redress
of grievances.

*180Nor can Congress deny to the people the right to keep and bear arms, nor
the right to trial by jury, nor compel anyone to be a witness against itself in
a criminal proceeding.
[FN336]
From the universal assumption that Congress could not infringe the Bill of
Rights in the territories, Taney concluded that Congress could not infringe the
property rights of slave-owners by abolishing slavery in the territories.
[FN337]

The Taney Court obviously considered the Second Amendment as one of the
constitutional rights belonging to individual Americans. The Henigan
"state's rights" Second Amendment could have no application in a
territory, since a territorial government is by definition not a state
government. And since Chief Justice Taney was discussing individual rights which
Congress could not infringe, the only reasonable way to read the Chief Justice's
reference to the Second Amendment is as a reference to an individual right. Nor
can the opinion of Chief Justice Taney (which was shared by six members of the
Court on the citizenship issue, and by five on the Territories issue) be
dismissed as casual dicta. The Court knew that Dred Scott would be one the most
momentous cases ever decided, as the Court deliberately thrust itself in the
raging national controversy over slavery. The case was argued in two different
terms, and the Chief Justice's opinion began by noting that "the questions
in controversy are of the highest importance."
[FN338]

And unlike most Supreme Court cases, Dred Scott became widely known among the
general population. The majority's statement listing the right to arms as one of
several individual constitutional rights which Congress could not infringe was
widely quoted during antebellum debates regarding Congressional power over
slavery.
[FN339]

Dred Scott's holding about black citizenship was overruled by the first sentence
of the Fourteenth Amendment, which states that all persons born in the Untied
States are citizens of the United States.
[FN340]
Dred Scott, which had exacerbated rather than cooled the North-South anger which
eventually caused the Civil War, became so universally despised that many people
forgot the details of what the case actually said. After the Spanish-American
War, the United States acquired the new territories of Cuba, Puerto Rico, and
the Philippines, and acquired Hawaii after that nation's government was
overthrown in a coup orchestrated by American farming interests. Thus, the
Supreme Court, in The Insular Cases, was forced to determine the constitutional
*181status of the new imperial territories.
[FN341]
In Downes v. Bidwell, the Court majority held that, despite the constitutional
requirement that taxes imposed by Congress be uniform throughout the United
States, Puerto Rico could be taxed at a different rate; Justice Henry Billings
Brown's five-man majority explicitly worried that a contrary result would force
the Bill of Rights to be applied in the new territories. Writing to Justice John
Harlan to applaud Harlan's dissenting opinion,
[FN342]
a New York attorney exclaimed that the majority opinion was "the Dred Scott
of Imperialism!"
[FN343]
But if the Insular
Cases Court had followed Dred Scott, then Justice Harlan and the other three
dissenters would have been in the majority; for Dred Scott stated that the Bill
of Rights did apply in the territories.

Although the citizenship holding in Dred Scott was so controversial that it was
repudiated by a constitutional amendment, the case's treatment of the Second
Amendment as an individual right was not; in each of the six times that the
Court addressed the Second Amendment in the rest of the nineteenth century, the
Court always treated the Second Amendment as an individual right.

The very first case in which a Supreme Court opinion mentioned the Second
Amendment was Houston v. Moore, an 1821 case so obscure that even modern
scholars of the Second Amendment are often unaware of it.
[FN344]
Part of the reason is that, thanks to a small error, the case cannot be
discovered via a Lexis or Westlaw search for "Second Amendment."

The Houston case grew out of a Pennsylvania man's refusal to appear for federal
militia duty during the War of 1812. The failure to appear violated a federal
statute, as well as a Pennsylvania statute that was a direct copy of the federal
statute. When Mr. Houston was prosecuted and convicted in a Pennsylvania court
martial for violating the Pennsylvania statute, his attorney argued that only
the federal government, not Pennsylvania, had the authority to
*182bring a prosecution; the Pennsylvania statute was alleged to be a state
infringement of the federal powers over the militia.

When the case reached the Supreme Court, both sides offered extensive arguments
over Article I, section 8, clauses 15 and 16, in the Constitution, which grant
Congress certain powers over the militia.
[FN345]
Responding to Houston's argument that Congressional power over the national
militia is plenary (and therefore Pennsylvania had no authority to punish
someone for failing to perform federal militia service), the State of
Pennsylvania lawyers retorted that Congressional power over the militia was
concurrent with state power, not exclusive.
[FN346]
In support of this theory, they pointed to the Tenth Amendment, which reserves
to states all powers not granted to the federal government.
[FN347]

If, as Henigan, Bogus, and some other modern writers claim, the only purpose of
the Second Amendment were to guard state government control over the militia,
then the Second Amendment ought to have been the heart of the State of
Pennsylvania's argument. But instead, Pennsylvania resorted to the Tenth
Amendment to make the "state's right" argument. There are two
possibilities to explain the State of Pennsylvania's lawyering. First, the
Pennsylvania attorneys committed malpractice, by failing to cite the
Constitutional provision that was directly on point (the Second Amendment's
supposed guarantee of state government control of the militia). Instead, the
Pennsylvania lawyers cited a Constitutional provision
which made the state's right argument only in a general sense, rather than in
relation to the militia. The other possibility is that the State of Pennsylvania
lawyers were competent, and they relied on the Tenth Amendment, rather than the
Second, because the Tenth guarantees state's rights, and the Second guarantees
an individual right.

Justice Bushrod Washington delivered the opinion of the Court, holding that the
Pennsylvania law was constitutional, because Congress had not forbidden the
states to enact such laws enforcing the federal militia statute.
[FN348]
Moreover, because Houston had never showed up for the militia muster, he had
never entered federal service; thus, Houston was still under the jurisdiction of
the State of Pennsylvania.
[FN349]
Justice William Johnson concurred; he argued
*183that Houston could not be prosecuted for violating the federal law;
accordingly, he could be prosecuted for violating the state law.
[FN350]

The Washington and Johnson opinions, therefore, upheld a state's authority over
militiaman Houston. Like the attorneys on both sides of the case, neither
Justice Washington nor Justice Johnson suggested that the Second Amendment had
anything to do with the case.

Justice Joseph Story, a consistent supporter of federal government authority,
dissented.
[FN351]
He argued that the Congressional legislation punishing militia resisters was
exclusive, and left the states no room to act.
[FN352]

Deep in the lengthy dissent, Justice Story raised a
hypothetical: What if Congress had not used its militia powers? If Congress were
inert, and ignored the militia, could the states act? "Yes," he
answered:

If, therefore, the present case turned upon the question, whether a state might
organize, arm and discipline its own militia, in the absence of, or subordinate
to, the regulations of congress, I am certainly not prepared to deny the
legitimacy of such an exercise of authority. It does not seem repugnant in its
nature to the grant of a like paramount authority to congress; and if not, then
it is retained by the states. The fifth [sic] amendment to the constitution,
declaring that "a well-regulated militia being necessary to the security of
a free state, the right of the people to keep and bear arms shall not be
infringed," may not, perhaps, be thought to have any important bearing on
this point. If it have, it confirms and illustrates, rather than impugns, the
reasoning already suggested.
[FN353]

After acknowledging that the Second Amendment (mislabeled the "fifth"
amendment in a typo) was probably irrelevant, Justice Story suggested that to
the extent the Second Amendment did matter, it supported his position.

Justice Story's dissent is inconsistent with the Henigan/Bogus theory that
Second Amendment somehow reduces Congress's militia powers. Immediately, after
the Second Amendment hypothetical, Justice Story stated that if Congress
actually did use its Article I powers over the militia, then Congressional power
was exclusive. There could be no state control, "however small."
[FN354]
If federal militia powers, when exercised, are absolute, then the Henigan/Bogus
theory that the Second Amendment limits federal militia powers is incorrect.

*184The Story dissent in Houston does not address the issue of individual Second
Amendment rights. Justice Story laid out a fuller explication of the Second
Amendment in his Commentaries on the Constitution of the United States, and his
Familiar Exposition of the Constitution of the United States. The Familiar
Exposition has the longest analysis of the Second Amendment:

The next amendment is, "A well-regulated militia being necessary to the
security of a free state, the right of the people to keep and bear arms shall
not be infringed." One of the ordinary modes, by which tyrants accomplish
their purposes without resistance, is, by disarming the people, and making it an
offence to keep arms, and by substituting a regular army in the stead of a
resort to the militia. The friends of a free government cannot be too watchful,
to overcome the dangerous tendency of the public mind to sacrifice, for the sake
of mere private convenience, this powerful check upon the designs of ambitious
men.

The importance of this article will scarcely be doubted by any persons, who have
duly reflected upon the subject. The militia is the natural defence of a free
country against sudden foreign invasions, domestic insurrections, and domestic
usurpations of power by rulers. It is against sound policy for a free people to
keep up large military establishments and standing armies in time of peace, both
from the enormous expenses, with which they are attended, and the facile means,
which they afford to ambitious and unprincipled rulers, to subvert the
government, or trample upon the rights of the people. The right of the citizens
to keep and bear arms has justly been considered, as the palladium of the
liberties of a republic; since it offers a strong moral check against the
usurpation and arbitrary power of rulers; and will generally, even if these are
successful in the first instance, enable the people to resist and triumph over
them. And yet, though this truth would seem so clear, and the importance of a
well regulated militia would seem so undeniable, it cannot be disguised, that
among the American people there is a growing indifference to any system of
militia discipline, and a strong disposition, from a sense of its burthens, to
be rid of all regulations. How it is practicable to keep the people duly armed
without some organization, it is difficult to see. There is certainly no small
danger, that indifference may lead to disgust, and disgust to contempt; and thus
gradually undermine all the protection intended by this clause of our national
bill of rights.
[FN355]

The Justice's Second Amendment is obviously an individual right, intended to
prevent the tyrannical tactic of "making it an offence to keep arms."
The purpose of arms possession is to facilitate a militia, and the purpose of
the militia is to suppress disorder from below (in the
form of riots) and from above (in the form of tyranny). In contrast to some
twentieth century *185commentators,
[FN356]
Justice Story shared the conventional wisdom of the nineteenth century
[FN357]:
removing a tyrannical government would not be "insurrection" but
instead would be the restoration of constitutional law and order.

Conclusion

In addition to the oft-debated case of United States
v. Miller,
[FN358]
the Supreme Court has mentioned or quoted the Second Amendment in thirty-seven
opinions in thirty-five other cases, almost always in dicta. One of the
opinions, Justice Douglas's dissent in Adams v. Williams, explicitly claims that
the Second Amendment is not an individual right.
[FN359]
Three majority opinions of the Court (the 1980 Lewis case,
[FN360]
the 1934 Hamilton case,
[FN361]
and the 1929 Schwimmer case
[FN362]),
plus one appeal dismissal (Burton v. Sills, 1969
[FN363]),
and one dissent (Douglas in Laird
[FN364])
are consistent with either the individual rights or the states rights theory,
although Lewis is better read as not supportive of an individual right, or not
supportive of an individual right worthy of any serious protection. (And knowing
of Justice Douglas's later dissent in Adams, his Laird dissent should not be
construed as supportive of an individual right.) Spencer
v. Kemna refers to right to bear arms as an individual right, but the opinion
does not specifically mention the Second Amendment, and so the reference could,
perhaps, be to the right established by state constitutions.
[FN365]

Two other cases are complicated by off-the-bench statements of the Justices. The
1976 Moore v. East Cleveland plurality opinion supports the individual right,
[FN366]
but in 1989 the opinion's author, retired Justice Powell, told a television
interviewer that there was no right to own a firearm. In an 1820 dissent,
Justice Story pointed to the Second Amendment to make a point about state
authority over the militia (although this would not necessarily be to the
exclusion of an individual right).
[FN367]
Justice Story's later scholarly *186commentaries on the Second Amendment only addressed the individual right,
and did not investigate the Amendment as a basis of state authority.
[FN368]

Concurring in Printz, Justice Thomas stated that United States v. Miller had not
resolved the individual rights question; the tone of the concurrence suggested
that Justice Thomas considered the Second Amendment to be an important
individual right.
[FN369]

Twenty-eight opinions remain, including nineteen majority opinions. Each of
these opinions treats the Second Amendment a right of individual American
citizens. Of these twenty-eight opinions, five come from the present Rehnquist Court,
and on the Rehnquist Court there has been no disagreement that the Second
Amendment is an individual right.

Of course that fact that a right exists does not mean that every proposed gun
control would violate that right; indeed, many of the opinions explicitly or
implicitly endorse various controls, and, except for Justice Black, none of the
authors of the opinions claim that the right is absolute.
[FN370]

In the face of this Supreme Court record, is it accurate for gun control
advocates to claim that the non-individual nature of the Second Amendment is
"perhaps the most well-settled" point in all of American
constitutional law?
[FN371]
The extravagant claim cannot survive a reading of what the Supreme Court has
actually said about the Second Amendment. In the written opinions of the
Justices of the United States Supreme Court, the Second Amendment does appear to
be reasonably well-settled--as an individual right. The argument that a
particular Supreme Court opinion's language about the Second Amendment does not
reflect what the author "really" thought about the Second Amendment
cannot be used to ignore all these written opinions--unless we presume that
Supreme Court Justices throughout the Republic's history have written things
about the Second Amendment that they did not mean.

While the Warren Court and the Burger Court offered mixed records on the Second
Amendment, the opinions from the Rehnquist Court (including from the Court's
"liberals" Ginsburg and Stevens) are just as clear as were the
opinions from the Supreme Court Justices of the nineteenth
century: "the right of the people to keep and bear arms" is a right
that belongs to individual American citizens. Although the boundaries of the
Second Amendment have only partially been addressed by Supreme Court
jurisprudence, the core of the *187Second Amendment is clear: the Second Amendment--like the First, Third,
Fourth, Fifth, Sixth, and Fourteenth Amendments--belongs to "the
people", not the government.

[FNa1].
Research Director, Independence Institute, Golden, Colorado, http://i2i.org;
J.D. 1985 University of Michigan Law School; B.A. in History, 1982, Brown
University. Author of Gun Control and Gun Rights (NYU Press, forthcoming, 2001).
I would like to thank Paul Blackman, Clayton Cramer, Brannon Denning, Billie J.
Grey, David Hunt, Dolores Kopel, Glenn Harlan Reynolds, Eugene Volokh, and the
Cincinnati Law Library Association for very helpful comments. Any errors in this
article are the fault of society, and cannot be blamed on an individual.

[FN1].
See, e.g., Sanford Lewinson, Is the Second Amendment Finally Becoming Recognized
as Part of the Constitution? Voices from the Courts, 1998 B.Y.U. Rev. 127.

[FN3].
Dennis Henigan, The Right to Be Armed: A Constitutional Illusion, S.F.
Barrister, Dec. 1989, P 19, available online at <http://
www.handguncontrol.org/legalaction/C2/c2rtarms.htm>. The late Dean Griswold
of Harvard, who was a member of the board of Henigan's group, expressed a nearly
identical thought: "that the Second Amendment poses no barrier to strong
gun laws is perhaps the most well-settled proposition in American constitutional
law." Erwin N. Griswold, Phantom Second Amendment 'Rights', Wash. Post,
Nov. 4, 1990, at C7

[FN7].
For an effort to trace the potential contours of a State's Rights Second
Amendment, see Glenn
Harlan Reynolds & Don B. Kates, The Second Amendment
and States' Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995)
(arguing that a State's Rights Second Amendment would give each state
legislature the power to arm its militia as it saw best, and thus the power to
negate--within the borders of that state--federal bans on particular types of
weapons).

Perhaps surprisingly, what distinguishes the Second Amendment scholarship from
that relating to other constitutional rights, such as privacy or free speech, is
that there appears to be far more agreement on the general outlines of Second
Amendment theory than exists in those other areas. Indeed, there is sufficient
consensus on many issues that one can properly speak of a "Standard
Model" in Second Amendment theory, much as physicists and cosmologists
speak of a "Standard Model" in terms of the creation and evolution of
the Universe. In both cases, the agreement is not complete: within both Standard
Models are parts that are subject to disagreement. But the overall framework for
analysis, the questions regarded as being clearly resolved, and those regarded
as still open, are all generally agreed upon. This is certainly the case with
regard to Second Amendment scholarship.

[FN9].
See, e.g., Senate Subcommittee on the Constitution of the Committee on the
Judiciary, 97th Cong., 2d Sess., The Right To Keep and Bear Arms (Comm. Print
1982); Akhil Amar, The Bill of Rights (1998); Robert J. Cottrol, Introduction to
1 Gun Control and the Constitution: Sources and Explorations on the Second
Amendment at ix (Robert J. Cottrol ed., 1993); Robert J. Cottrol & Raymond
T. Diamond, Public Safety and the Right to Bear Arms, in The Bill of Rights in
Modern America: After 200 Years 72 (David J. Bodenhamer & James W. Ely, Jr.,
eds., 1993); Robert J. Cottrol, Second Amendment, in The Oxford Companion to the
Supreme Court of the United States 763 (Kermit L. Hall et al. eds., 1992);
Clayton Cramer, For the Defense of Themselves and the State at xv (1994); 4
Encyclopedia of the American Constitution 1639-40 (Leonard W. Levy et al. eds.,
1986); Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1876
(1989); Stephen Halbrook, Freedmen, the Fourteenth Amendment, and the Right to
Bear Arms: 1866-1876 (1998); Stephen Halbrook, A Right To Bear Arms: State And
Federal Bills Of Rights And Constitutional Guarantees (1989); Stephen P.
Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right
(1984); Edward F. Leddy, Guns and Gun Conrtol, in Reader's Companion to American
History 477-78 (Eric Foner & John A. Garraty eds., 1991); Leonard W. Levy,
Original Intent and the Framers' Constitution 341 (1988); Leonard Levy, Origins
of the Bill of Rights (1999); Joyce Lee Malcolm, To Keep and Bear Arms: The
Origins of an Anglo-American Right (1994); Laurence H.
Tribe, I American Constitutional Law 894-903 (3d ed. 2000). Akhil Reed Amar, The
Bill of Rights and the Fourteenth Amendment, 101
Yale L.J. 1193 (1992); Akhil Reed Amar, The Bill of Rights as a
Constitution, 100
Yale L.J. 1131, 1164 (1991); Randy E. Barnett & Don B. Kates, Under
Fire: The New Consensus on the Second Amendment, 45
Emory L.J. 1139, 1141 (1996); Bernard J. Bordenet, The Right to Possess
Arms: The Intent of the Framers of the Second Amendment, 21 U. West L.A. L. Rev.
1, 28 (1990); David I. Caplan, The Right of the Individual to Bear Arms: A
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to Have Arms and Use Deadly Force Under the Second and Third Amendments, 2.1 J.
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and Bearing Arms, 15 U. Balt. L.F. 32 (1984); Robert Dowlut, The Right to Arms:
Does the Constitution or the Predilection of Judges
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62
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and to Bear Arms: Presser v. Illinois, Last Holdout Against Application of the
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Seton Hall Const. L.J. 341 (1995); Stephen P. Halbrook, Second-Class
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the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment,
26 Val. U. L. Rev. 131 (1991); Stephen P. Halbrook, What the
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Law & Contemp. Probs. 151 (1986); Stephen P. Halbrook & David B.
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the Bill of Rights, 4 J.L. & Pol. 1 (1987); Nicholas J. Johnson, Principles and Passions: The
Intersection of Abortion and Gun Rights, 50
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Original Meaning of the Second Amendment, 82
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Dialogue, 49
Law & Contemp. Probs. 143 (1986); Don Kates, The Second Amendment and
the Ideology of Self-Protection, 9 Const. Commentary 87 (1992); Kopel, The
Second Amendment in the Nineteenth Century, supra note 7; David B. Kopel &
Christopher C. Little, Communitarians, Neorepublicans, and Guns: Assessing the
Case for Firearms Prohibition,
56
Md. L. Rev. 438 (1997); Stephanie A. Levin, Grassroots Voices: Local Action
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Individual's Right to Arms, 31
Ga. L.
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Right to Self-Preservation, 39
Ala. L. Rev. 103 (1987); Joyce Lee Malcolm, The Right of the People to Keep
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Thomas B. McAffee & Michael J. Quinlan, Bringing Forward the Right to Keep
and Bear Arms: Do Text, History, or Precedent Stand in the Way?, 75
N.C. L. Rev. 781 (1997); Thomas M. Moncure, Jr., The Second Amendment Ain't
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1 (1990); James Gray Pope, Republican Moments: The Role of Direct Popular Power
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Wm. & Mary L. Rev. 1311 (1997); Michael J. Quinlan, Is There a Neutral
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Cap. U. L. Rev. 641 (1993); Glenn Harlan Reynolds, A Critical Guide to the
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Arms Under the Tennessee Constitution: A Case Study in Civic Republican Thought,
61
Tenn. L. Rev. 647 (1994) (discussing the Second Amendment as related to the
Tennessee Constitution); Elaine Scarry, War and the Social Contract: Nuclear
Policy, Distribution, and the Right to Bear Arms, 139
U. Pa. L. Rev. 1257 (1991); J. Neil Schulman, The Text of the Second Amendment,
4 J. on Firearms & Pub. Pol'y 159 (1992); Robert E. Shalhope, The Armed
Citizen in the Early Republic, 49 Law & Contemp. Probs. 125 (1986); Robert
E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist.
599 (1982); William Van Alstyne, The Second Amendment and the Personal Right to
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Duke L.J. 1236 (1994); David E. Vandercoy, The History of the Second
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Val. U. L. Rev. 1007 (1994); Eugene Volokh, The Amazing Vanishing Second
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73 N.Y.U. L. Rev. 793 (1998); Scott Bursor, Note, Toward a Functional Framework
for Interpreting the Second Amendment, 74
Tex. L. Rev. 1125 (1996); Robert J. Cottrol & Raymond T. Diamond, The
Fifth Auxiliary Right, 104
Yale L.J. 995 (1995) (reviewing Joyce Lee Malcolm, To Keep and Bear Arms:
The Origins of an Anglo-American Right (1994)); Brannon P. Denning, Professional
Discourse, The Second Amendment, and the "Talking Head
Constitutionalism" Counterrevolution: A Review Essay, 21
S. Ill. U. L.J. 227 (1997) (reviewing Dennis A. Henigan et al., Guns and the
Constitution: The Myth of Second Amendment Protection for Firearms in America
(1996)); T. Markus Funk, Is the True Meaning of the Second Amendment Really Such
a Riddle? Tracing the Historical "Origins of an Anglo- American
Right", 39
How. L.J. 411 (1995) (reviewing Joyce Lee Malcom, To Keep and Bear Arms: The
Origins of an Anglo-American Right (1994)); David B. Kopel, It Isn't About Duck
Hunting: The British Origins of the Right to Arms,
93
Mich. L. Rev. 1333 (1995) (reviewing Joyce Lee Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right (1994)); F. Smith Fussner, Book
Review, 3 Const. Commentary 582 (1986) (reviewing Stephen P. Halbrook, That
Every Man Be Armed: The Evolution of a Constitutional Right (1984)); Joyce Lee
Malcolm, Book Review, 54
Geo. Wash. L. Rev. 452 (1986) (reviewing Stephen P. Halbrook, That Every Man
Be Armed: The Evolution of a Constitutional Right (1984)); cf. Nicholas
J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed
through the Ninth Amendment, 24 Rutgers L.J. 1 (1992) (arguing that the
Ninth Amendment supports an individual right to arms). For a list of all law
review articles of firearms policy or the Second Amendment, See David B. Kopel,
Comprehensive Bibliography of the Second Amendment in Law Review, 11 J. Firearms
& Pub. Pol. 5 (1999), http:// www.Saf.org/ALLLawReviews.htm.

[FN14].
See, e.g, Runnebaum
v. Nationsbank of Maryland, N.A., 123 F.3d 156 n. 8 (4th Cir. 1997) (en
banc, plurality opinion) ("Neither gathering in a group nor carrying a
firearm are one of the major life activities under the ADA [Americans with
Disabilities Act], though individuals have the constitutional right to peaceably
assemble, see U.S. Const. amend. I; and to 'keep and bear Arms,' U.S.
Const. amend. II."); United
States v. Atlas, 94 F.3d 447, 452 (8th Cir. 1996) (Arnold, C.J., dissenting)
("possession of a gun, in itself, is not a crime. [Indeed, though the right
to bear arms is not absolute, it finds explicit protection in the Bill of
Rights.]");
Cases
v. United States, 131 F.2d 916, 921 (1st Cir. 1942) (federal law restricting
gun possession by persons under indictment "undoubtedly curtails to some
extent the right of individuals to keep and bear arms." Miller test
rejected because it would prevent federal government from
restricting possession of machine guns by "private persons.");
United
States v. Emerson, 46 F. Supp.2d 598 (N.D. Tex. 1999) (dismissing criminal
prosecution of defendant for violation of
18
U.S.C. 922(g)(8) because the provision violates the Second Amendment; case
presents the most thorough exposition of the competing views of the Second
Amendment ever presented in a federal court decision); Zappa
v. Cruz, 30 F. Supp. 2d 123, 138 (D. P.R. 1998):

These individual liberties, aside from abridging the governments' ability to
impose upon individual citizens--e.g., by protecting freedom of religion,
prohibiting the quartering of troops and the taking [of] property for public use
without compensation, and guaranteeing due process of law--enhance the
citizenry's ability to police the government--e.g., by protecting speech, press,
the right to assemble, and the right to bear arms.

[FN16].
United
States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark, 1939) (sustaining
demurrer to prosecution, because "The court is of the opinion that this
section is invalid in that it violates the Second Amendment to the Constitution
of the United States providing, 'A well regulated militia being necessary to the
security of a free state, the right of the people to keep and bear arms, shall
not be infringed." ')

[FN17].
Since a federal statute had been found unconstitutional, the federal government
was allowed to take the case directly to the Supreme Court, under the law of the
time.

the weapons of warfare to be used by the militia, such as swords, guns, rifles,
and muskets--arms to be used in defending the State and civil liberty--and not
to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are
usually employed in brawls, street-fights, duels, and affrays, and are only
habitually carried by bullies, blackguards, and desparadoes, to the terror of
the community and the injury of the State.

[FN24].
Presser
v. Illinois, 116 U.S. 252 (1886) (Second Amendment not violated by ban on
armed parades; see infra) text at notes 310-20;
Robertson
v. Baldwin, 165 U.S. 275 (1897) (Second Amendment not violated by ban on
carrying concealed weapons, see infra text at notes 290-96); Fife v. State, 31
Ark. 455 (Second Amendment does not apply to the states; state right to arms not
violated by ban on brass knuckles);
People
v. Brown, 253 Mich. 537, 235 N.W. 245 (1931) (Michigan state constitution
right to arms applies to all citizens, not just
militiamen; right is not violated by ban on carrying blackjacks);
Aymette
v. State, 21 Tenn. (2 Hum.) 154 (1840) (Tennessee state constitution right
to arms and U.S. Second Amendment right belong to individual citizens, but right
includes only the types of arms useful for militia service); State
v. Duke, 42 Tex. 455 (1874) (Second Amendment does not directly apply to the
states; Texas constitution protects "arms as are commonly kept, according
to the customs of the people, and are appropriate for open and manly use in
self-defense, as well as such as are proper for the defense of the
State."); State v. Workman, supra note 20.

[FN25].
"Cooley's Constitutional Limitations, Vol. 1, p. 729":

Among the other defences to personal liberty should be mentioned the right of
the people to keep and bear arms. A standing army is particularly obnoxious in
any free government, and the jealousy of one has at times been demonstrated so
strongly in England as almost to lead to the belief that a standing army
recruited from among themselves was more dreaded as an instrument of oppression
than a tyrannical king, or any foreign power. So impatient did the English
people become of the very army which liberated them from the tyranny of James
II, that they demanded its reduction, even before the liberation could be felt
to be complete; and to this day, the British Parliament renders a standing army
practically impossible by only passing amutiny bill from
session to session. The alternative to a standing army is "a well-regulated
militia," but this cannot exist unless the people are trained to bear arms.
How far it is in the power of the legislature to regulate this right, we shall
not undertake to say, as happily there has been little occasion to discuss that
subject by the courts.

In a later treatise, Cooley elaborated on how the right to arms ensures the
existence of the militia:

The Right is General.--It may be supposed from the phraseology of this provision
that the right to keep and bear arms was only guaranteed to the militia; but
this would be an interpretation not warranted by the intent. The militia, as has
been elsewhere explained, consists of those persons who, under the law, are
liable to the performance of military duty, and are officered and enrolled for
service when called upon. But the law may make provision for the enrolment of
all who are fit to perform military duty, or of a small number only, or it may
wholly omit to make any provision at all; and if the right were limited to those
enrolled, the purpose of this guaranty might be defeated altogether by the
action or neglect to act of the government it was meant to hold in check. The
meaning of the provision undoubtedly is, that the people, from whom the militia
must be taken, shall have the right to keep and bear arms, and they need no
permission or regulation of law for the purpose. But this enables the government
to have a well-regulated militia; for to bear arms implies
something more than the mere keeping; it implies the learning to handle and use
them in a way that makes those who keep them ready for their efficient use; in
other words, it implies the right to meet for voluntary discipline in arms,
observing in doing so the laws of public order.

Thomas M. Cooley, The General Principles of Constitutional Law in the United
States of America 281-82 (Boston, Little, Brown 2d ed. 1891). The other scholar
cited in the Miller footnote is "Story on The Constitution, 5th Ed., Vol.
2, p. 646":

The right of the citizens to keep and bear arms has justly been considered as
the palladium of the liberties of a republic; since it offers a strong moral
check against the usurpation and arbitrary power of rulers; and will generally,
even if these are successful in the first instance, enable the people to resist
and triumph over them.

And yet, though this truth would seem so clear, and the importance of a well
regulated militia would seem so undeniable, it cannot be disguised that, among
the American people, there is a growing indifference to any system of militia
discipline, and a strong disposition, from a sense of its burdens, to be rid of
all regulations. How it is practicable to keep the people duly armed, without
some organization, it is difficult to see. There is certainly no small danger
that indifference may lead to disgust, and disgust to contempt;
and thus gradually undermine all the protection intended by this clause of our
national bill of rights.

For more on Justice Story, see text at notes 351 to 355, infra.

[FN26].
Salina
v. Blaksley, 72 Kan. 230, 83 P. 619 (1905) (right to arms in Kansas Bill of
Rights is only an affirmance of the state government's supremacy over the
militia; the Second Amendment means the same). Another cited case, Jeffers v.
Fair, 33 Ga. 347 (1862), is a Confederate draft case.

[FN27].
Infra text at note 280.

[FN28].
One reason for the neglect of the cases may be mistaken claims that the cases do
not exist. "Issue Brief", Handgun Control, Inc. website claims,
"Since Miller, the Supreme Court has addressed the Second Amendment in two
cases." Actually, there have been 19 such cases after Miller. The Second
Amendment, http://www.handguncontrol.org/myth.htm.

[FN29].
That the Court has discussed the Second Amendment relatively rarely, compared to
the First or Fourth Amendments, does not necessarily mean that the Second
Amendment is unimportant. Until recent decades, there was almost no federal gun
control to speak of (except for the 1934 National Firearms Act, which
was upheld in Miller). That Congress hardly ever passed legislation which
arguably infringed the Second Amendment (and which would generate a challenge
invoking judicial review) is itself proof of the Second Amendment's influence.
"A principle of law is not unimportant because we never hear of it; indeed
we may say that the most efficient rules are those of which we hear least, they
are so efficient that they are not broken." Frederic W. Maitland, The
Constitutional History of England 481-82 (11th ed.) (Cambridge: Cambridge Univ.
Pr., 1948).

Similarly, the Third Amendment has received little attention from the Court, but
that is not because the Third Amendment can be violated with impunity; to the
contrary, the Third Amendment has needed little discussion because it is has
been universally respected, and, except in one case, never violated. Engblom
v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand, 572
F. Supp. 44 (S.D. N.Y. 1983), aff'd. per curiam, 724
F.2d 28 (2d Cir. 1983).

[FN30].
Michael C. Dorf, Dicta and Article III, 142
U. Pa. L. Rev. 1997, 2050 (1994) ("All the words used by a court to
explain its result contribute to its justification, and parsing the opinion into
holding and dictum attributes a degree to precision to the enterprise of
judicial decision-making that it lacks in actual practice.")

[FN31].
United
States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting)
("These decisions do not justify today's decision. They merely prove how a
hint becomes a suggestion, is loosely turned into dictum, and finally elevated
to a decision.").

[FN32].
The technique of using broader context to understand isolated statements is not
unique to analysis of Supreme Court cases. Biblical scholars, for example, often
refer to many different parts of the Bible in order to explain a passage which
is confusing or ambiguous in isolation.

Because this article is only about the Second Amendment, it does not analyze
Supreme Court cases involving gun control or the militia in which the Second
Amendment was not mentioned

How many times have you heard an opponent of gun control cite the "right to
keep and bear arms" without mentioning the introductory phrase "A well
regulated Militia, being necessary to the security of a free state..." ? In
fact, some years ago, when the NRA placed the words of the Second Amendment near
the front door of its national headquarters in Washington, D.C., it omitted that
phrase entirely! The NRA's convenient editing is not
surprising; the omitted phrase is the key to understanding that the Second
Amendment guarantees only a limited right that is not violated by laws affecting
the private ownership of firearms.

[FN42].
Id. (emphasis added). Numerous state and federal statutes outlaw firearms
possession by persons convicted of felonies or certain misdemeanors. Generally
speaking, the federal prohibitions are broader than their state counterparts.

[FN43].
Alabama: "That every citizen has a right to bear arms in defense of himself
and the state." Ala.
Const. art. 1, § 26.

Alaska: "A well-regulated militia being necessary to the security of a free
state, the right of the people to keep and bear arms shall not be
infringed." Alaska
Const. art. 1, § 19.

Arizona: "The right of the individual citizen to bear arms in defense of
himself or the State shall not be impaired, but nothing in this section shall be
construed as authorizing individuals or corporations to organize, maintain, or
employ an armed body of men." Ariz.
Const. art. II, § 26.

Arkansas: "The citizens of this State shall have the right to keep and bear
arms for their common defense." Ark. Const. art. II, § 5.

Colorado: "The right of no person to keep and bear arms in defense of his
home, person and property, or in aid of the civil power when thereto legally
summoned, shall be called in question; but nothing herein contained shall be
construed to justify the practice of carrying concealed weapons." Colo.
Const. art. II, § 13. Connecticut: "Every
citizen has a right to bear arms in defense of himself and the state." Conn.
Const. art. I, § 15.

Florida: "The right of the people to keep and bear arms in defense of
themselves and of the lawful authority of the state shall not be infringed,
except that the manner of bearing arms may be regulated by law." Fla.
Const. art. I, § 8.

Georgia: "The right of the people to keep and bear arms, shall not be
infringed, but the General Assembly shall have the power to prescribe the manner
in which arms may be borne." Ga. Const. art. I, § 1, para. 5.

Hawaii: "A well regulated militia being necessary to the security of a free
state, the right of the people to keep and bear arms shall not be
infringed." Hawaii
Const. art. 1, § 15.

Idaho: "The people have the right to keep and bear arms, which right shall
not be abridged; but this provision shall not prevent the passage of laws to
govern the carrying of weapons concealed on the person nor prevent passage of
legislation providing minimum sentences for crimes committed while in possession
of a firearm, nor prevent the passage of legislation providing penalties for the
possession of firearms by a convicted felon, nor prevent the passage of any
legislation punishing the use of a firearm. No law shall impose licensure,
registration or special taxation on the ownership or possession of firearms or
ammunition. Nor shall any law permit the confiscation of
firearms, except those actually used in the commission of a felony." Idaho
Const. art. 1, § 11.

Illinois: "Subject only to the police power, the right of the individual
citizen to keep and bear arms shall not be infringed." Ill.
Const. art. I, § 22.

Indiana: "The people shall have a right to bear arms, for the defense of
themselves and the State." Ind.
Const. art. I, § 32.

Kansas: "The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to liberty, and
shall not be tolerated, and the military shall be in strict subordination to the
civil power." Kan.
Const., Bill of Rights, § 4.

Kentucky: "All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned:... Seventh: The
right to bear arms in defense of themselves and of the State, subject to the
power of the General Assembly to enact laws to prevent persons from carrying
concealed weapons." Ky. Const. § I, para. 7.

Louisiana: "The right of each citizen to keep and bear arms shall not be
abridged, but this provision shall not prevent the passage of laws to prohibit
the carrying of weapons concealed on the person." La.
Const. art. 1, § 11.

Maine: "Every citizen has a right to keep and bear arms for the common defense;
and this right shall never be questioned." Me.
Const. art. I, § 16.

Massachusetts: "The people have a right to keep and bear arms for the
common defense. And as, in times of peace, armies are dangerous to liberty, they
ought not to be maintained without the consent of the legislature; and the
military power shall always be held in an exact subordination to the civil
authority, and be governed by it." Mass.
Const. Pt. I, art. xvii.

Michigan: "Every person has a right to keep or bear arms for the defense of
himself and the State." Mich.
Const. art. I, § 6.

Mississippi: "The right of every citizen to keep and bear arms in defense
of his home, person, or property, or in aid of the civil power where thereto
legally summoned, shall not be called in question, but the legislature may
regulate or forbid carrying concealed weapons." Miss.
Const. art. III, § 12.

Missouri: "That the right of every citizen to keep and bear arms in defense
of his home, person and property, or when lawfully summoned in aid of the civil
power, shall not be questioned; but this shall not justify the wearing of
concealed Weapons." Mo.
Const. art. 1, § 23.

Montana: "The right of any person to keep or bear arms in defense of his
own home, person, and property, or in aid of the civil power when thereto
legally summoned, shall not be called in question, but nothing herein contained
shall be held to permit the carrying of concealed
weapons." Mont.
Const. art. II, § 12.

Nebraska: "All persons are by nature free and independent, and have certain
inherent and inalienable rights; among these are life, liberty, the pursuit of
happiness, and the right to keep and bear arms for security or defense of self,
family, home, and others, and for lawful common defense, hunting, recreational
use, and all other lawful purposes, and such rights shall not be denied or
infringed by the state or any subdivision thereof. To secure these rights, and
the protection of property, governments are instituted among people, deriving
their just powers from the consent of the governed." Neb.
Const. Art. I, § 1.

Nevada: "Every citizen has the right to keep and bear arms for security and
defense, for lawful hunting and recreational use and for other lawful
purposes." Nev.
Const. art. 1, § 11(1).

New Hampshire: "All persons have the right to keep and bear arms in defense
of themselves, their families, their property, and the State." N.H. Const.
Pt. I, art. 2a.

New Mexico: "No law shall abridge the right of the citizen to keep and bear
arms for security and defense, for lawful hunting and recreational use and for
other lawful purposes, but nothing herein shall be held to permit the carrying
of concealed weapons." N.M.
Const. art. II, § 6. North Carolina: "A well
regulated militia being necessary to be the security of a free State, the right
of the people to keep and bear arms shall not be infringed; and, as standing
armies in time of peace are dangerous to liberty, they shall not be maintained,
and the military shall be kept under strict subordination to, and governed by,
the civil power. Nothing herein shall justify the practice of carrying concealed
weapons, or prevent the General Assembly from enacting penal statutes against
that practice." N.C.
Const. art. I, § 30.

North Dakota: "All individuals are by nature equally free and independent
and have certain inalienable rights, among which are those of enjoying and
defending life and liberty; acquiring, possessing and protecting property and
reputation; pursuing and obtaining safety and happiness; and to keep and bear
arms for the defense of their person, family, property, and the state, and for
lawful hunting, recreational, and other lawful purposes, which shall not be
infringed." N.D.
Const. Art. I, § 1.

Ohio: "The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to liberty, and
shall not be kept up; and the military shall be in strict subordination to the
civil power." Ohio
Const. art. I, § 4.

Oklahoma: "The right of a citizen to keep and bear arms in defense of his
home, person, or property, or in aid of the civil power, when thereuntolegally
summoned, shall never be prohibited; but nothing herein contained shall prevent
the Legislature from regulating the carrying of weapons." Okla. Const. art.
11, § 26.

Oregon: "The people shall have the right to bear arms for the defence of
themselves, and the State, but the Military shall be kept in strict
subordination to the civil power." Or.
Const. art. I, § 27.

Pennsylvania: "The right of the citizens to bear arms in defence of
themselves and the State shall not be questioned." Pa.
Const. art. I, § 21.

Rhode Island: "The right of the people to keep and bear arms shall not be
infringed." R.I.
Const. art. 1, § 22.

South Carolina: "A well regulated militia being necessary to the security
of a free State, the right of the people to keep and bear arms shall not be
infringed. As, in times of peace, armies are dangerous to liberty, they shall
not be maintained without the consent of the General Assembly. The military
power of the State shall always be held in subordination to the civil authority
and be governed by it. No soldier shall in time of peace be quartered in any
house without the consent of the owner nor in time of war but in the manner
prescribed by law." S.C. Const. art. I, § 20.

South Dakota: "The right of the citizens to bear arms in defense of
themselves and the state shall not be denied." S.D.
Const. art. VI, § 24. Tennessee: "That the
citizens of this State have a right to keep and bear arms for their common
defense; but the Legislature shall have power, by law, to regulate the wearing
of arms with a view to prevent crime." Tenn.
Const. art. I, § 26.

Texas: "Every citizen shall have the right to keep and bear arms in the
lawful defence of himself or the State; but the Legislature shall have power, by
law, to regulate the wearing of arms, with a view to prevent crime." Tex.
Const. art. 1, § 23.

Utah: "The individual right of the people to keep and bear arms for
security and defense of self, family, others, property, or the state, as well as
for other lawful purposes shall not be infringed; but nothing herein shall
prevent the legislature from defining the lawful use of arms." Utah
Const. art. 1, § 6.

Vermont: "That the people have a right to bear arms for the defence of
themselves and the State-and as standing armies in time of peace are dangerous
to liberty, they ought not to be kept up; and that the military should be kept
under strict subordination to and governed by the civil power." Vt.
Const. Ch. I, art. 16.

Virginia: "That a well regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe defense of a free
state, therefore, the right of the people to keep and bear arms shall not be infringed;
that standing armies, in time of peace, should be avoided as dangerous to
liberty; and that in all cases the military should be under strict subordination
to, and governed by, the civil power." Va.
Const. art. I, § 13.

Washington: "The right of the individual citizen to bear arms in defense of
himself, or the state, shall not be impaired, but nothing in this section shall
be construed as authorizing individuals or corporations to organize, maintain,
or employ an armed body of Men." Wash.
Const. art. I, § 24.

West Virginia: "A person has the right to keep and bear arms for the
defense of self, family, home and state, and for lawful hunting and recreational
use." W. Va. Art.
III, § 22.

Wisconsin: "The people have the right to keep and bear arms for security,
defense, hunting, recreation or any other lawful purpose." Wis.
Const. Art. I, § 25.

Wyoming: "The right of citizens to bear arms in defense of themselves and
of the state shall not be denied." Wyo.
Const. art. I, § 24.

In addition, New York State's Civil Right Law has a statutory provision which is
a word for word copy of the Second Amendment. N.Y. Civ. Rights §
4.

[FN45].
Contrast Justice Stevens' view with that of Justice Blackmun in the Lewis case,
infra notes 94-113; the Blackmun opinion suggests that the right to arms is so
unimportant that a person may be imprisoned for the exercise of that right after
conviction of a crime--even if the conviction is concededly unconstitutional.

[FN48].
Justice Scalia has not written an opinion on the Second Amendment, but he has
expressed his views out of court:

So also, we value the right to bear arms less than did the Founders (who thought
the right to self-defense to be absolutely fundamental), and there will be few
tears shed if and when the Second Amendment is held to guarantee nothing more
than the state National Guard. But this just shows the Founders were right when
they feared that some (in their view misguided) future generation might wish to
abandon liberties that they considered essential, and so
sought to protect those liberties in a Bill of Rights. We may...like elimination
of the right to bear arms; but let us not pretend that these are not reductions
of rights.

[FN51].
First: "[t]o support; to sustain; as, to bear a weight or burden"
Second: "To carry; to convey; to support and remove from place to
place" . 3:" [[t]o wear; to bear as a mark of authority or
distinction; as, to bear a sword, a badge, a name; to bear arms in a coat."
Noah Webster, An American Dictionary of the English Language (1828) (emphasis in
originagl).

[FN52].
Volokh, supra note 35, at 810.

[FN53].
Id.

[FN54].
Garry Wills, Why We Have No Right to Bear Arms, N.Y. Rev. Books, Sept. 21, 1995,
at 62.

[FN55].
Id.

[FN56].
Id. at 64.

[FN57].
During the Senate Judiciary Committee hearings on Ruth Bader Ginsburg's
nomination to the Supreme Court, Senator Dianne Feinstein (a strong supporter of
gun prohibition) asked Mrs. Ginsburg about the Second Amendment. Mrs. Ginsburg
politely refused to say anything, except that the Amendment had not been
incorporated.

Sen. Feinstein:

Let me begin with the Second Amendment. I first became concerned about what does
the Second Amendment mean with respect to guns in 1962 [sic] when President
Kennedy was assassinated...

Judge Ginsburg:

Senator Feinstein, I can say on the Second Amendment only what I said earlier,
the one thing that the court has held, that it is not incorporated in the Bill
of Rights [sic, 14th Amendment], it does not apply to the states. The last time
the Supreme Court spoke to this question is in 1939. You summarized what that
was and you also summarized the state of law in the lower courts. But this is a
question that may well be before again, and all I can do
is to acknowledge what I understand to be the current case law, that this is not
incorporated in--that this is not one of the provisions binding on the states.
The last time the Supreme Court spoke to it is in 1939, and because of where I
sit, it would be inappropriate for me to say anything more than that. I would
have to consider, as I've said many times today, the specific case, the briefs
and the arguments that would be made, and it would be injudicious for me to say
anything more with respect to the Second Amendment.

....

Sen. Feinstein:

[C]ould you talk at all about the methodology you might apply, what factors you
might look at in discussing Second Amendment cases should Congress, say, pass a
ban on assault weapons?

Judge Ginsburg:

I wish I could, Senator, but all I can tell you is that this is an amendment
that has not been looked at the by the Supreme Court since 1939, and it-- apart
from the specific context, I can't--I really can't expound on it. It's an area
of law in which my court has had no business and one I had no acquaintance as a
law teacher. So really feel that I'm not equipped beyond what I already told
you, that it isn't an incorporated amendment. The Supreme Court has not dealt
with it since 1939. And I would proceed with the care I would
give to any serious constitutional question.

As you recognize, Senator, the Second Amendment does--is in the Constitution. It
provides a protection. As you also have recognized, the Supreme Court law on the
subject is very, very, very few cases. This really hasn't been gone into in any
depth by the Supreme Court at all. Like you, I've never heard anyone even argue
that there's some kind of constitutional right to have guns in a school. And I
know that every day--not every day; I don't want to exaggerate--but every week
or every month for the last 14 years I've sat on case after case in which
Congress has legislated rules, regulations, restrictions of all kinds on
weapons.

That is to say there are many, many circumstances in which carrying weapons of
all kinds is punishable by very, very, very severe penalties. And Congress
often--I mean by overwhelming majorities--has passed legislation imposing very
severe additional penalties on people who commit all kinds of crimes with guns,
even various people just possessing guns under certain circumstances.

And in all those 14 years, I've never heard anyone seriously argue that any of
those was unconstitutional in a serious way. I shouldn't say never, because I
don't remember every case in 14 years. So, obviously, it's
fairly well conceded across the whole range of society, whatever their views
about gun control legislatively and so forth that there's a very, very large
area for government to act. At the same time, as you concede and others, there's
some kind of protection given in the Second Amendment.

Now that's, it seems to me, where I have to stop, and the reason that I have to
stop is we're in a void in terms of what the Supreme Court has said. There is
legislation likely to pass or has recently passed that will be challenged, and
therefore I, if I am on that Court, have to listen with an open mind to the
arguments that are made in the particular context.

Sen. Feinstein:

Well, would you hold that the 1939 decision [Miller] is good law?

Justice Breyer:

I've not heard it argued that it's not, but I haven't reviewed the case and I
don't know the argument that would really come up. I know that it's been fairly
limited, what the Supreme Court has said. And I know that it's been fairly
narrow. I also know that other people make an argument for a somewhat more
expanded view. But nobody that I've heard makes the argument going into these
areas where there is quite a lot of regulation already. I shouldn't really
underline no one, because you can find, you know, people who make different
arguments. But it seems there's a pretty broad consensus there. Sen.
Feinstein:

Would you attach any significance to the framers of the Second Amendment, where
it puts certain things in capital letters?

Justice Breyer:

I'm sure when you interpret this you do go back from the text to the history and
try to get an idea of what they had in mind. And if there is a capital letter
there, you ask why is there this capital letter there, somebody had an idea, and
you read and try to figure out what the importance of that was viewed at the
time and if that's changed over time.

[FN60].
The Civil Rights Act of 1964 used the interstate commerce power to regulate
parties to commercial transactions, such as hotel or restaurant guests and
owners. But the Brady Act attempted to expand the interstate commerce power even
further, by forcing third parties to become involved in the commercial
transaction. The Brady Act commandeered local sheriffs and police to perform
background checks on a commercial act--the retail sale of a handgun. It was as
if the Civil Rights Act had compelled state and local government employees to
serve as race sensitivity mediators in hotel and restaurants. It was one thing
to use the interstate commerce power to regulate commerce. It is another thing
use that power to force people who are stranger to the commercial transaction to
get involved. See
David B. Kopel, The Brady Bill Comes Due: The Printz Case and
State Autonomy, Geo. Mason Univ. Civ. Rights L.J. 189 (1999).

[FN63].
In contrast to the suggestion that the Bill of Rights might "confer"
the right to bear arms, the Supreme Court in the 1875 case of United States v.
Cruikshank stated that the Second Amendment, like the First Amendment, does not
confer rights on anyone. Rather, those Amendments simply recognized and
protected pre-existing human rights. See text at notes 321 to 328.

[FN86].
The evidence was some of Verdugo-Urquidez's personal papers. Under the original
intent of the Fourth and Fifth Amendments, the seizure of such papers would be
seen as particularly inappropriate. The English government's use of diaries and
other personal papers in prosecution of dissidents was widely regarded in
America as one of the great outrages of British despotism. See
Akhil Amar, The Bill of Rights 65-67 (1998). Under Boyd v.United States, the
Court affirmed that private papers could not be introduced against a defendant,
because the use of such papers would violate the Fourth and Fifth Amendments. Boyd
v. United States, 116 U.S. 616 (1886). Unfortunately, a later Supreme Court
abandoned this rule; thus, Independent Counsel Kenneth Starr was well within the
letter of the law when his staff subpoenaed and read the diaries of Monica
Lewinsky and her friends.

[FN88].
Verdugo is of course a Fourth Amendment case, not a Second Amendment case. But
there is no reason to believe that the Court did not mean what it said about the
Second Amendment in Verdugo.

Oddly, some of the same persons who want the public to ignore what the Supreme
Court said about the Second Amendment in the Verdugo case instead want the
public to rely on what a retired justice said about the Second Amendment in a
forum with much less precedential value than a Supreme Court decision or a law
journal: an article in Parade magazine.

While on the Supreme Court, Chief Justice Warren Burger never wrote a word about
the Second Amendment. After retirement, he wrote an article for Parade magazine
that is the only extended analysis by any Supreme Court Justice of why
the Second Amendment does not guarantee an individual right. Warren Burger, The
Right to Bear Arms, Parade, Jan. 14, 1990, at 4-6.

Chief Justice Burger argued that the Second Amendment is obsolete because we
"need" a large standing army, rather than a well-armed citizenry. But
the notion that constitutional rights can be discarded because someone thinks
they are obsolete is anathema to a written Constitution. If a right is thought
"obsolete," the proper approach is to amend the Constitution and
remove it. After all, the Seventh Amendment guarantees a right to a jury trial
in all cases involving more than twenty dollars. U.S.
Const. amend. VII. In 1791, twenty dollars was a lot of money; today it is
little more than pocket change. Nevertheless, courts must (and do) enforce the
Seventh Amendment fully.

And while the Second Amendment certainly drew much of its original support from
fear of standing armies, its language is not limited to that issue.
"Legislation, both statutory and constitutional, is enacted,...from an
experience of evils...its general language should not, therefore, be necessarily
confined to the form that evil had heretofore taken...[A] principle to be vital
must be capable of wider application than the mischief which gave it
birth."
Weems
v. United States, 217 U.S. 349, 373 (1910).

Yet after attacking the Second Amendment as obsolete, Chief Justice Burger's
essay affirmed that "Americans have a right to defend their homes." If
this right does not derive from the Second Amendment, does
it come from the Ninth Amendment, as Nicholas Johnson has argued? See Nicholas
Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through
the Ninth Amendment, 24 RUTGERS L.J. 1, 49 (1992). The Burger essay does not
say.

Next comes the real shocker: "Nor does anyone seriously question that the
Constitution protects the right of hunters to own and keep sporting guns for
hunting game any more than anyone would challenge the right to own and keep
fishing rods and other equipment for fishing--or to own automobiles."

In a single sentence, the former Chief Justice asserts that three
"Constitutional rights"--hunting, fishing, and buying cars--are so
firmly guaranteed as to be beyond question. Yet no Supreme Court case has ever
held any of these activities to be Constitutionally protected.

What part of the Constitution protects the right to fish? The 1776 Pennsylvania
Constitution guaranteed a right to fish and hunt, and the minority report from
the 1789 Pennsylvania ratifying convention made a similar call. Various common
law sources (such as St. George Tucker's enormously influential American edition
of Blackstone) likewise support hunting rights. 3 William Blackstone,
Commentaries 414 n.3 (St. George Tucker ed., Lawbook Exchange, Ltd. 1996)
(1803). And some state Constitutions guarantee a right to arms for hunting,
among other purposes. See, e.g,, the state constitutions of New Mexico, Nevada,
West Virginia, and Wisconsin, supra note 43.

But the Supreme Court has never recognized such a right, and its lone decision
on the subject is to the contrary.
Patsone
v. Pennsylvania, 232 U.S. 138 (1914) (ban on possession of hunting guns by
aliens is legitimate, because the ban does not interfere with gun possession for
self-defense; the Court did not discuss the Second Amendment).

Similarly, the "right" to own automobiles could, arguably, be derived
from the right to interstate travel but it is hardly a settled matter of law,
despite what the Chief Justice seemed to say.

Chief Justice Burger contrasted "recreational hunting" guns with
"Saturday Night Specials" and "machine guns," implying that
the latter two are beyond the pale of the Constitution. Thus, according to the
Parade essay, some unidentified part of the Constitution (but not the Second
Amendment) guarantees a right to own guns for home defense, a right to own
hunting guns, a right to fishing equipment, and a right to buy automobiles. But
the Constitution does not guarantee the right to own inexpensive handguns or
machine guns.

Chief Justice Burger's "machine gun" comment was particularly odd in
light of what he was pictured holding on the front cover of Parade: an assault
weapon. The Chief Justice displayed his grandfather's rifled musket, with which
his grandfather had killed or attempted to kill people during the Civil War. While
the musket seems quaint and non-threatening today, it was a state of the art
assault weapon in its time. Under the Miller test (arms suitable for militia
use; see supra text at note 19), the nineteenth century rifled musket and the
twentieth century machine gun would seem to be much closer to the core of the
Second Amendment than would "recreational hunting guns."

After writing the Parade essay, Chief Justice Burger participated in an
advertising campaign for Handgun Control, Inc., in which he called the NRA's
view of the Second Amendment "a fraud." Given that the Chief Justice
agreed with the NRA that the Constitution protects a right to own home defense
guns and recreational sporting guns, and disagreed with the NRA about
"Saturday Night Specials," the "fraud" rhetoric was rather
extreme. Was it reasonable to call the NRA fraudulent for locating the right in
the Second Amendment, as opposed to the other (unknown) part of the Constitution
that the Chief Justice would prefer?

But the issue of whether the right to bear arms is granted to "the
people" only in connection with militia service is not even addressed in
the Verdugo-Urquidez decision. At most, the decision implies that the Second Amendment
right extends only to U.S. citizens; it does not address the precise scope of
the right granted. In no way does the Court's ruling contradict the idea that
the right of the people to bear arms is exercised only through membership in a
"well regulated Militia."

Handgun Control, Exploding the NRA's Second Amendment Indeology: A Guide for Gun
Control Advocates, http:// www.handguncontrol.org/legalaction/C2/C2myth.htm.
Here, Henigan is apparently adopting an alternative theory of the Second
Amendment. Rather than the Second Amendment guaranteeing a right to state
governments (as Henigan claimed in his law review articles), the Second
Amendment is now a right that does belong to people (rather than to state
governments), but this right only applies to people in a well-regulated militia.
This is also the view of Herz. See generally Herz, supra note 6. But neither
Henigan nor Herz explain what this right might mean. Does a National Guardsman
have a legal cause of action when the federal government takes away his rifle?
Even though the rifle is owned by the federal government? See
32
U.S.C. § 105(a)(1).

If a disarmed National Guardsman does not have a cause of action, then who else
could exercise the Second Amendment right to be armed in "a well- regulated
militia" ? The fundamental problem with Henigan's theories (and with those
of his followers) is that the theories are not meant as an actual explanation of
anything. They are meant to convince people that the Second Amendment
places no restraint on gun control, but the theories are not meant to describe
what the Second Amendment does protect.

[FN91]. United
States v. Verdugo-Urquidez, 856 F. 2d 1214, 1239 (9th Cir. 1988) (Wallace,
J., dissenting), rev'd
494
U.S. 259 (1990) ("Besides the fourth amendment, the name of 'the
people' is specifically invoked in the first, second, ninth, and tenth
amendment. Presumably, 'the people' identified in each amendment is coextensive
with 'the people' cited in the other amendments.")

[FN105].
United
States v. Thompson/Center Arms Co., 504 U.S. 505 (1992) (statutory
interpretation case holding that a handgun and rifle kit was not subject to a
National Firearms Act tax applicable to short rifles; that a buyer could
illegally assemble certain parts to create a short rifle did not bring the
lawful sale of rifle and handgun components within the terms of the tax
statute).

[FN109].
As in this quote from Cody, the First Circuit's 1943 Cases decision is sometimes
cited as a lower court following Miller. See
Cases
v. United States, 131 F.2d 916 (1st Cir. 1942). To the contrary, Cases
limits Miller to its facts, and refuses to apply the Miller relationship-to-the-
militia test. The Miller test, explained the Cases judges, would allow
"private citizens" to possess machine guns and other destructive
weapons. Cases upholds a federal gun control law while acknowledging that the
law limits the exercise of Second Amendment rights.

[FN114].
Aymette
v. State, 21 Tenn. (2 Hum.) 154 (1840) (right to arms is for defense against
tyranny, not for "private" defense; while "The citizens have the
unqualified right to keep the weapon", the legislature can restrict the
carrying of firearms) (emphasis in original).

[FN123].
Eugene Volokh, Sources on the Second Amendment and Rights to Keep and Bear Arms
in State Constitutions, pt. I <http:// www.law.ucla.edu/faculty/volokh/
2amteach/sources.htm#TOC1>; David Young, The Origin of the Second Amendment
(1991).

[FN127].
Gary Kleck, Targeting Guns: Firearms and Their Control (1997).

[FN128].
The dominant line of traditional cases limits the scope of "arms"
protected by the Second Amendment to arms which an individual could use in a
militia; in the nineteenth century, rifles and swords were the paradigm of such weapons.
Kopel, The Second Amendment in the 19th Century, supra note 10. A minority line
of cases goes further, and protects weapons which could be useful for personal
defense, even if not useful for militia service. See, e.g.,
State
v. Kessler, 614 P.2d 94 (Or. 1980) (billy club); State
v. Delgado, 692 P.2d 610 (Or. 1984) (switchblade knife).

[FN135].
"With respect to handguns... it is not easy to understand why the Second
Amendment, or the notion of liberty, should be viewed as creating a right to own
and carry a weapon that contributes so directly to the shocking numbers of
murders in the United States." American Bar Association Speech, Toronto,
Canada, Aug. 7, 1988.

MR. LEHRER: Another issue that was before the court and is still before the
nation as we go into a new year is the subject of gun control. You have said
that the constitution does not guarantee the right to bear arms. Explain that.

JUSTICE POWELL: Have you read the second amendment?

MR. LEHRER: Well, I think I have but be my guest.

JUSTICE POWELL: Well, it talks about militia. In the days that the amendment was
adopted in 1791, each state had an organized militia. The states distrusted the
national government, didn't believe a national government had the authority or
the ability to protect their liberties, so the militia was a very important
factor to the states. This court decided a case that I haven't seen decided, I'm
not a hundred percent sure, I think it was the United States against Miller
decided back in the late 30's, in which the question involved a sawed off shot
gun. I won't go into the details of the opinion, but in essence, there's
language in that that suggests what I believe, and that is that the second
amendment was never intended to apply to hand guns or, indeed to sporting rifles
and shot guns. I've had a shot gun since I was 12 years old and I still
occasionally like to shoot birds, but hand guns certainly were not even dreamed
of in the sense that they now exist at the time the second amendment was
adopted.

Actually, handguns had been invented and were well known by 1789. See Ian V.
Hogg, The Illustrated Encylopedia of Firearms (1978). Handguns were common
enough in the early sixteenth century so that proposed legislation as early as
1518 addressed them. Id. at 16-17. By the latter part of the 1500s, handguns had
become standard cavalry weapons. Id. at 17. When the Second Amendment was
ratified, state militia laws requiring most men to supply their own firearms
required officers to supply their own pistols.

[FN141].
Id.
at 150-51. Justice Douglas was a newly-appointed member of the Court that
decided Miller, but he did not participate in the case, having joined the Court
after the case was argued. Justice Black (whose views on the Second Amendment
are found infra at notes 179-82, 194-96, 221-28) did serve on the Miller Court,
and joined in the unanimous decision.

[FN165].
For the best analysis of how Madison synthesized two different traditions in the
Second Amendment (the republican militia theory in the purpose clause, and the
human rights theory in the main clause), see Hardy, Armed Citizens, Citizen
Armies: Toward a Jurisprudence of the Second Amendment, supra note 9.

[FN173].
The New Jersey court in Burton could never be charged with excessive regard for
individual rights, for the court wrote, "the common good takes precedence
over private rights...Our basic freedoms may be curtailed if sufficient reason
exists therefor. Only in a very limited sense is a person free to do as he
pleases in our modern American society."
Burton
v. Sills, 240 A.2d 432, 434 (N.J. 1968). In contrast, the New Jersey Supreme
Court in 1925 had recognized "The right of a citizen to bear arms,"
but had explained that the right "is not unrestricted." Hence, a law
requiring a license to carry a concealed revolver was not unconstitutional. State
v. Angelo, 3 N.J. Misc. 1014 (Sup. Ct. 1925). Since New Jersey is one of the
few states without a state constitutional right to arms, the court's reference
to the "right of the citizen" must have been a reference to the Second
Amendment.

When the Framers wrote the Bill of Rights they enshrined in the form of
constitutional guarantees those rights--in part substantive, in part
procedural--which experience indicated were indispensible to a free
society....[T]he constitutional conception of "due process" must, in
my view, include them all until and unless there are amendments that remove
them. That has indeed been the view of a full court of nine Justices, though the
members who make up that court unfortunately did not sit
at the same time.

Justice Douglas's list of Justices who favored full incorporation of the Bill of
Rights named Bradley, Swayne, Field, Clifford, the first Harlan, Brewer, Black,
Murphy, Rutledge, and Douglas. Id. at 516 n.8.

[FN215].
The Fifth Amendment's prohibition on trial by court martial does not, by its own
terms, apply to soldiers in the standing army (or to militiamen engaged in
militia duty).

[FN216].
Id. at 784 (emphasis added).

[FN217].
The characters in the hypothetical are not militia members either. A militia is
an organized force under government control. In contrast, "guerrilla
fighters" or "were-wolves" are small groups or individuals
functioning in enemy territory beyond the reach of any friendly government. The
legal distinction was of great importance during World War II. Switzerland, for
example, made extensive plans for its militia forces (consisting of almost the
entire able-bodied adult male population) to resist a German invasion to the
last man. But the Swiss government also warned its citizens not to engage in
guerrilla warfare on their own; the militiamen fighting the Germans would be
entitled to the protection of the rules of war and international conventions,
but guerrillas would not. See Stephen Halbrook, Target Switzerland (1998).
Having served as a judge of the Nuremburg Trials, Justice Jackson was presumably
familiar with the distinctions in the international law of war between guerillas
and soldiers/militia.

[FN218].
During the Civil War, in 1864, an Indiana man Lambdin P. Milligan was charged
with aiding the southern rebellion against the national government. Although
Indiana was under full union control, and courts in Indiana were functioning,
Milligan was tried before a military court martial and sentenced to death. In
1866, a unanimous Supreme Court overturned Milligan's conviction, holding that
martial law can only be applied in theaters of war, and not in areas where the
civil courts were functioning. Ex Parte Milligan,
71 U.S. (4 Wall.) 2 (1866).

The Court did not discuss the Second Amendment, but in argument to the Court,
the Attorney General of the United States did. During the argument before the
Court, Milligan's lawyers had claimed that Congress could never impose martial
law. They pointed out that the Fourth Amendment (no searches without warrants),
the Fifth Amendment (no criminal trials without due process), and the Sixth
Amendment (criminal defendants always have a right to a jury trial) do not
contain any exceptions for wartime.

The Attorney General, who was defending the legality of Milligan's having been
sentenced to death by court martial, retorted that under conditions of war, the
protections of the Bill of Rights do not apply. Thus, the federal government
could disarm a rebel, without violating his Second Amendment right to keep and
bear arms. The Attorney General urged the Court to construe the Second,
Third, Fourth, Fifth and Sixth Amendments in pari materia:

After war is originated, whether by declaration, invasion, or insurrection, the
whole power of conducting it, as to manner, and as to all the means and
appliances by which war is carried on by civilized nations, is given to the
President. He is the sole judge of the exigencies, necessities, and duties of
the occasion, their extent and duration.....

Much of the argument on the side of the petitioner will rest, perhaps, upon
certain provisions not in the Constitution itself, and as originally made, but
now seen in the Amendments made in 1789: the fourth, fifth, and sixth
amendments. They may as well be here set out:

4. The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue but upon probable cause supported by oath or
affirmation, and particularly describing the place to be searched and the
persons or things to be seized.

5. No person shall be held to answer for a capital or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia when in actual service in time of
war or public danger; nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use without just compensation.

6. In all criminal prosecutions the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed,... and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defence.

In addition to these, there are two preceding amendments which we may also
mention, to wit: the second and third. They are thus:

2. A well-regulated militia being necessary to the security of a free State, the
right of the people to keep and bear arms shall not be infringed.

3. No soldier shall in time of peace be quartered in any house without the
consent of the owner, nor in time of war but in a manner to be prescribed by
law.

It will be argued that the fourth, fifth, and sixth articles, as above given,
are restraints upon the war-making power; but we deny this. All these amendments
are in pari materia, and if either is a restraint upon the President in carrying
on war, in favor of the citizen, it is difficult to see why all of them are not.
Yet will it be argued that the fifth article would be violated in
"depriving if life, liberty, or property, without due process of
law," armed rebels marching to attack the capital? Or that the fourth would
be violated by searching and seizing the papers and houses of persons in open
insurrection and war against the government? It cannot properly be so argued,
any more than it could be that it was intended by the second article (declaring
that "the right of the people to keep and bear arms shall not be
infringed") to hinder the President from disarming insurrectionists,
rebels, and traitors in arms while he was carrying on war against them.

These, in truth, are all peace provisions of the Constitution and, like all
other conventional and legislative laws and enactments, are silent amidst arms,
and when the safety of the people becomes the supreme law.

By the Constitution, as originally adopted, no limitations were put upon the
war-making and war-conducting powers of Congress and the President; and after
discussion, and after the attention of the country was called to the subject, no
other limitation by subsequent amendment has been made, except by the Third
Article, which prescribes that "no soldier shall be quartered in any house
in time of peace without consent of the owner, or in time of war, except in a
manner prescribed by law."

This, then, is the only expressed constitutional restraint upon the President as
to the manner of carrying on war. There would seem to be no implied one; on the
contrary, while carefully providing for the privilege of the writ of habeas
corpus in time of peace, the Constitution takes it for granted that it will
be suspended "in case of rebellion or invasion (i. e., in time of war),
when the public safety requires it."

Id. at 29-33.

Thus, the Attorney General explained, the Second Amendment belongs to
individuals, but if a Confederate rebel were disarmed, his Second Amendment
right would not be violated, since the Second Amendment would not apply to
him--even though the Second Amendment has no explicit exception for wartime.
Likewise, if Congress declared martial law in a region, a civilian would be
subjected to a court martial, rather than trial by jury, even though the Sixth
Amendment (which guarantees jury trials) has no explicit exception for wartime.
The Attorney General plainly saw the Second Amendment as guaranteeing an
individual right.

The United States government also made another argument showing that the Second
Amendment belongs to individuals. On behalf of Milligan, attorney David Dudley
Field had presented a passionate and superb argument, explaining that the
ultimate issue at bar was the supremacy of the civil power over the military, a
principle at the very heart of Anglo-American liberty and republican government.

Field had made much of the fact that the Fifth Amendment's requirement that
persons could only be tried if they had first been indicted by a grand jury had
an explicit exception for military circumstances ("except in cases arising
in the land or naval forces, or in the militia when in actual service in time of
war or public danger"). Field pointed out that Milligan (an Indiana
civilian with Confederate sympathies) was obviously not within the terms of the
exception.

In response, the Attorney General turned the argument over to Benjamin Franklin
Butler. A very successful lawyer, Butler had been one of the most prominent
Union Generals during the Civil War; a few months after his Supreme Court
argument, Butler would be elected to Congress from Massachusetts, and would
become one of the leading Radical Republicans.

Butler told the Supreme Court that the whole Bill of Rights contained implicit
exceptions which were not stated in the text. For example, despite the literal
language of the Fifth Amendment and the Second Amendment, slaves in antebellum
America had been deprived of liberty without due process and had been forbidden
to possess arms:

...the constitution provides that "no person" shall be deprived of
liberty without due process of law. And yet, as we know, whole generations of
people in this land--as many as four millions of them at one time--people
described in the Constitution by this same word, "persons," have been
till lately deprived of liberty ever since the adoption of the Constitution,
without any process of law whatever.

The Constitution provides, also, that no "person's" right to bear arms
shall be infringed; yet these same people, described
elsewhere in the Constitutions as "persons," have been deprived of
their arms whenever they had them."

Id. at 178-79.

Butler's point, presented on behalf of the Attorney General, was that the right
to arms and the right not to be deprived of liberty without due process were
individual rights guaranteed to all "persons." Yet despite the literal
guarantee to all "persons," slaves had been deprived of their liberty
without a fair trial, and had not been allowed to own or carry guns. Thus, there
must an implicit "slavery exception" in the Second Amendment and the
Fifth Amendment. And if there could be an unstated "slavery
exception," there could also be an unstated "in time of war"
exception.

Butler's argument is totally incompatible with the claim that the Second
Amendment right does not belong to individuals. According to Henigan and Bogus,
the Second Amendment can only be violated when the federal government interferes
with state militias. But there were no federal laws forbidding states to enroll
slaves in the state militias. (The federal Militia Act of 1792 enrolled whites
only, but the Act did not prevent the states from structuring their own militias
as they saw fit.) Although there were no federal law interfering with state
militias, there were state laws forbidding individual blacks to possess arms. So
Butler's argument assumed that the Second Amendment right to arms inhered in
individuals (including slaves, if the Amendment were read
literally, with no implied exception for slavery).

[FN246].
The court was quoting language from Article
I, Section 8 of the Constitution, which gives such authority to Congress.
This grant is not inconsistent with pre-existent state authority, so long as the
state authority is not used in conflict with the federal authority.

[FN278].
Id. They are the familiar language of the Bill of Rights, slightly changed in
form, but not in substance, as found in the first nine amendments to the
Constitution of the United States, with the omission of the provision preserving
the right of trial by jury and the right of the people to bear arms, and adding
the prohibition of the 13th Amendment against slavery or involuntary servitude
except as punishment for crime, and that of Article
I, Section 9, to the passage of bills of attainder and ex post facto laws.

[FN285].
The Presser case, discussed infra at notes 310-20, appears in the Justice
Brown's majority opinion, as part of a string cite for the proposition,
"the first eight amendments are limitations only upon the powers of
congress and the federal courts, and are not applicable to the several states,
except so far as the fourteenth amendment may have made them applicable." Id.
at 606.

[FN300].
John Randolph Tucker, The Constitution of the United States (Fred B. Rothman
& Co. 1981) (1899); William G. Bean, John Randolph Tucker, in The Dictionary
of American Biography (CD-Rom ed. 1997).

[FN301].
I hold the privilege and immunity of a citizen of the United States to be such
as have their recognition in or guaranty from the Constitution of the United
States. Take then the declared object of the Preamble, "to secure the
blessings of liberty to ourselves and our posterity," we ordain this
Constitution--that is, we grant powers, declare rights, and create a Union of
States. See the provisions as to personal liberty in the States guarded by
provision as to ex post facto laws, &c.; as to contract rights--against
States' power to impair them, and as to legal tender; the security for habeas
corpus; the limits imposed on Federal power in the Amendments and in the
original Constitution as to trial by jury, &c.; the Declaration of
Rights--the privilege of freedom of speech and press--of peaceable assemblages
of the people--of keeping and bearing arms--of immunity from search and
seizure--immunity from self-accusation, from second
trial--and privilege of trial by due process of law. In these last we find the
privileges and immunities secured to the citizen by the Constitution. It may
have been that the States did not secure them to all men. It is true that they
did not. Being secured by the Constitution of the United States to all, when
they were not, and were not required to be, secured by every State, they are, as
said in the Slaughter-House Cases, privileges and immunities of citizens of the
United States.

The position I take is this: Though originally the first ten Amendments were
adopted as limitations on Federal power, yet in so far as they secure and
recognize fundamental rights--common law rights--of the man, they make them
privileges and immunities of the man as citizen of the United States, and cannot
now be abridged by a State under the Fourteenth Amendment. In other words, while
the ten Amendments, as limitations on power, only apply to the Federal
government, and not to the States, yet in so far as they declare or recognize
rights of persons, these rights are theirs, as citizens of the United States,
and the Fourteenth Amendment as to such rights limits state power, as the ten
Amendments had limited Federal power.

[FN305].
Eilenbecker v. District Court of Plymouth County, 134 U.S. 131 (1890):

The first three of these assignments of error, as we have stated them, being the
first and second and fourth of the assignments as numbered in the brief of the
plaintiffs in error, are disposed of at once by the principle often decided by
this court, that the first eight articles of the amendments to the Constitution
have reference to powers exercised by the government of the United States and
not to those of the States. Livingston
v. Moore, 7 Pet. 469; The Justices
v. Murray, 9 Wall. 274; Edwards
v. Elliott, 21 Wall. 532;
United
States v. Cruikshank, 92 U.S. 542; Walker
v. Sauvinet, 92 U.S. 90; Fox
v. Ohio, 5 How. 410; Holmes
v. Jennison, 14 Pet. 540;
Presser
v. Illinois, 116 U.S. 252.

[FN307].
During the nineteenth century, the official Supreme Court reports included
summaries of counsels' arguments. Besides Tucker's argument in Spies, there are
two other nineteenth century cases which record use by counsel
of the Second Amendment; both uses were by the Attorney General's office, and
both regarded the Second Amendment as an individual right. In the argument for
In re Rapier, Assistant Attorney General Maury defended a federal ban on the
mailing of lottery tickets: "Freedom of the press, like freedom of speech,
and 'the right to keep and bear arms,' admits of and requires regulation, which
is the law of liberty that prevents these rights from running into
license." In
re Rapier, 143 U.S. 110, 131 (1892). The other argument came from the
Attorney General in Ex Parte Milligan. Ex Parte Milligan,
71 U.S. (4 Wall.) 2 (1866); supra note 217.

[FN311].
See Levinson, supra note 9; Stephen Halbrook, The Right of Workers to Assemble
and to Bear Arms: Presser v. Illinois, Last Holdout Against Application of the
Bill of Rights to the States, 76
U. Det. Mercy L. Rev. (1999, forthcoming).

[FN313].
1 William Hawkins, A Treatise of the Pleas of the Crown 126 (Garland Publ. 1978)
(1716) (A Justice of the Peace may require surety from persons who "go
about with unusual Weapons or Attendants, to the Terror of the People.")

[FN322].
16 Stat. 140 §
6 (1870);
18
U.S.C. §§ 241,
242:
"That if two or more persons shall band or conspire together, or go in
disguise upon the public highway, or upon the premises of another...or
intimidate any citizen with intent to prevent or hinder his free exercise and
enjoyment of any right or privilege secured or granted him by the Constitution
or laws of the United States...."

[FN326]. Id.
at 553 quoting New York v. Miln, 36 U.S. (11 Pet.) 125, 139 (1837). Cf.
Bliss
v. Commonwealth, 12 Ky. (2 Litt.) 90, 92, 13 Am. Dec. 251, 253 ("The
right [to arms in the Kentucky Constitution] existed at the adoption of the
constitution; it had no limits short of the moral power of the citizens to
exercise it, and it in fact consisted in nothing else but the liberty of the
citizens to bear arms.").

[FN327].
"The Second Amendment protects only the right of the states to maintain and
equip a militia and does not guarantee individuals the right tobear
arms; United States v. Cruikshank (1875)." C. Herman Pritchett, The
American Constitution 397 n. 1 (2d ed. McGraw-Hill, 1968).

[FN330]. Scott
v. Sandford, 60 U.S. (19 How.) 393 (1856). Among Chief Justice Taney's
proofs that free blacks were not citizens was the fact that blacks were often
excluded from militia service. The Taney opinion explained that the parties to
the original American social compact were only those "who, at that time
[American independence], were recognized as the people or citizens of a State,
whose rights and liberties had been outraged by the English Government; and who
declared their independence, and assumed the powers of Government to defend
their rights by force of arms." Id.
at 407. The new nation's federal militia law of 1792 had enrolled only free
white males in the militia of the United States, and
blacks had been excluded from the New Hampshire militia. Id.
at 420. These facts suggested to Chief Justice Taney that free blacks were
not recognized as citizens, since they were not in the militia.

Justice Curtis retorted by pointing to the language of the 1792 Militia Act,
which enrolled "every free, able-bodied, white male citizen." Justice
Curtis pointed out the implication of the language that "citizens"
included people who were not able-bodied, were not male, or were not white;
otherwise, there would have been no need to limit militia membership of
able-bodied white males. Id.
at 442 (Curtis, J., dissenting). But Justice Curtis's argument had one
problem: the use of the word "free" in the Militia Act. It was
undisputed that slaves were not citizens, since they were deprived of all rights
of citizenship. The Militia Act enrolled only "free, able-bodied, white
male citizens." If we follow Justice Curtis's logic to conclude that the
Militia Act proves that non-whites could be citizens, then the same logic would
show that unfree persons could be citizens.

The stronger part of the Curtis dissent was his evidence showing that many of
the thirteen original states did recognize blacks as citizens. The Taney
majority never directly addressed this part of the Curtis argument, except by
listing various disabilities (such as prohibitions on racial intermarriage, or
bans on operating schools for blacks) which even anti-slavery states like Massachusetts
and Connecticut imposed on free blacks. Thus, in a bizarre way, the Taney
majority (despite its pro-slavery taint) pre-figures twentieth century Supreme
Court jurisprudence that there can be no second-class citizens in the United
States. The Curtis opinion argues that various civil disabilities (including
exclusion from the militia) are consistent with citizenship. For the Taney
majority, citizenship is all or nothing; exclusion from education, from
intermarriage with whites, or from the militia are all incompatible with
citizenship. Thus, once a constitutional amendment conclusively declared that
blacks are citizens, the logic of the Dred Scott majority leads to the results
in
Brown
v. Board, 349 U.S. 294 (1955) (racial discrimination in schooling is
incompatible with citizenship rights);
Loving
v. Virginia, 388 U.S. 1 (1967) (laws against intermarriage are incompatible
with citizenship rights); and
Bell
v. Maryland, 378 U.S. 226, 260 (1964) (segregation in restaurants and lunch
counters "is a badge of second-class citizenship."); Id
at 288 (Douglas, J., concurring) ("The Thirteenth, Fourteenth, and
Fifteenth Amendments do not permit Negroes to be considered as second-class
citizens in any aspect of our public life."). In contrast, the Curtis
dissent (while laudably humane in its anti-slavery sentiments) allows for
second-class citizenship on the basis of race.

[FN339].
See, e.g., Stephen Douglas, The Dividing Line Between Federal and Local
Authority: Popular Sovereignty in the Territories, Harper's (Sept. 1859) 519,
530.

[FN340]. U.S.
Const., amend. XIV, § 1 ("All persons born or naturalized in the
United States and subject to the jurisdiction thereof, are citizens of the
Untied States and of the State wherein they reside.")

[FN345].
"To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions." "To provide for
organizing, arming, and disciplining, the Militia, and for governing such Part
of them as may be employed in the Service of the United States, reserving to the
States respectively, the Appointment of the Officers, and the Authority of
training the Militia according to the discipline prescribed by Congress."

[FN351].
This was the only time that Justice Story dissented from a constitutional
decision in which Chief Justice Marshall was in the majority. James McClellan,
Joseph Story and the American Constitution 311 n. 161 (2d ed. 1990).

[FN354].
The Supreme Court decided one other militia case during this period. Writing for
a unanimous Court, Justice Story held that the President's determination of the
need for a militia call-out was not subject to judicial review. See Martin
v. Mott, 25 U.S. (12 Wheat.) 19 (1827).

[FN355].
Joseph Story, A Familiar Exposition of the Constitution of the United States
264-65 (1842) For more on Justice Story's thoughts about the Second Amendment,
see Kopel, The Second Amendment in the Nineteenth Century, supra note 4, at
119-20.

[FN370].
Justice Black did view the entire Bill of Rights as absolute within it terms. He
explicitly so stated with regard to the Second Amendment in his James Madison
lecture at New York University. It might be reasonable to read Justice Black's
Supreme Court opinions which mention the Second Amendment as reflecting his
absolutist view. See supra text at notes 179-82, 194-96, 221-34.

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